NUMBER 13-22-00115-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
CHARLES DEROUEN, INDIVIDUALLY AND DEROUEN EXPRESS SERVICES LLC D/B/A JC EXPRESS SERVICES, Appellants,
v.
EDDIE PRIDGEN, INDIVIDUALLY AND EDDIE PRIDGEN WELDING LLC, Appellees.
On appeal from County Court at Law No. 1 of Victoria County, Texas.
MEMORANDUM OPINION Before Justices Benavides, Longoria, and Tijerina Memorandum Opinion by Justice Benavides
Appellants Charles DeRouen, Individually and DeRouen Express Services LLC
d/b/a JC Express Services (DeRouen Services) appeal from a no-answer default
judgment rendered in favor of appellees Eddie Pridgen, Individually and Eddie Pridgen Welding LLC (Pridgen Welding). By five issues that we have reorganized, DeRouen and
DeRouen Services argue: (1) the trial court’s amended default judgment is void;
(2) service was defective; (3) the trial court abused its discretion by denying their motion
for new trial; (4) Pridgen Welding lacked capacity to bring its claims; and (5) the evidence
was insufficient to support the trial court’s judgment.
We vacate in part, affirm in part, reverse and remand in part, and reverse and
render in part.
I. BACKGROUND
On July 14, 2021, Pridgen and Pridgen Welding filed their original petition, alleging
claims for relief against DeRouen and DeRouen Services under the theories of breach of
contract, sworn account, and quantum meruit. Pridgen and Pridgen Welding attached to
the petition: (1) a balance sheet, indicating the total amount of debt owed by DeRouen
and DeRouen Services as of July 13, 2021 ($18,830); (2) letters dated December 21,
2020, and June 16, 2021, demanding that DeRouen and/or DeRouen Services pay this
outstanding balance; (3) an affidavit signed by Pridgen; (4) a “Land Lease” executed
between Pridgen and DeRouen, in their capacities as lessor and lessee, respectively;
and (5) judgments and liens entered against DeRouen in other matters. The petition
requested personal service on DeRouen at “23434 Pearson Bend Lane, Richmond,
Texas 77469, or wherever he can be found.” It also requested personal service on
DeRouen Services through DeRouen Services’ registered agent, Brian W. Rogers, who
could be located at “5803 N. John Stockbauer, Suite E, Victoria, Texas, 77904.”
2 A. Substitute Service
1. On DeRouen, Individually
On August 10, 2021, Pridgen filed a motion for substitute service, which stated that
“[r]easonably effective notice of the suit” could be given to DeRouen by serving a copy of
the petition and order granting substitute service on “anyone 16 years of age or older at
the location specified in the attached affidavit.” The affidavit attached to the motion was
sworn to by Avery Marcus Garrett, who averred that he attempted service on DeRouen
at “1402 N. Henry, Cuero, Texas” on “7-22-21” at “9:20 A.M.,” “7-26-21” at “11:10 A.M.,”
and “7-28-21” at “5:05 P.M.” However, Garrett checked a box indicating that “[a]fter a duly
diligent attempt to serve process on the person or entity at the address listed above, I
have been unable to affect process.” The following day, the trial court granted Pridgen’s
motion for substitute service, permitting service on DeRouen by leaving copies of the
petition, citation, and order granting substitute service with any person sixteen years old
or older, or by affixing copies of the same to the front door at “1402 N. Henry, Cuero,
DeWitt County, Texas 77954, a place Charles DeRouen is likely to be found.” The court
concluded that such a manner of service “will be reasonably effective in
giving . . . DeRouen notice of the suit.”
A return of the citation was filed on August 18, 2021, and indicated that Garrett
delivered a copy of the petition and citation to James Patrick Martin on July 21, 2021, at
9:12 a.m.1 Additionally, on August 30, 2021, a document entitled “DECLARATION OF
NOT FOUND” was filed. In this declaration, Christopher G. Sampa averred that on July
1 The return did not indicate that a copy of the order granting substitute service had been delivered
to Martin. 3 19, 2021, he visited 23434 Pearson Bend Lane, Richmond, Texas 77469, and learned
from the occupant—DeRouen’s sister-in-law—that DeRouen was not presently living
there, nor had he ever “really” lived there. That same day, DeRouen’s sister-in-law
provided Sampa with DeRouen’s phone number, and Sampa left a voicemail for
DeRouen.
2. On DeRouen Services
On September 27, 2021, Pridgen filed another motion for substitute service,
claiming that “[r]easonably effective notice of the suit may be given to . . . [DeRouen
Services] by having the Texas Secretary of State served as the agent for the entity
pursuant to Texas Business Organizations Code [§] 5.251(1)(B).” Attached was an
affidavit attested to by Garrett. In the affidavit, Garrett explained that he had attempted to
locate Rogers, the registered agent of DeRouen Services, at his place of business, his
last known address, and at his parents’ residence. Garrett explained that he had “no
knowledge of [Rogers’s] whereabouts.”
The following day, the trial court signed an order granting substitute service. The
order permitted service on DeRouen Services by “serving the Texas Secretary of State,
as agent, with the citation, with a copy of the petition and a copy of this order attached, at
P.O. Box 13697, Austin, Texas 78711-3697.” On November 29, 2021, a letter from the
Texas Secretary of State was filed, in which the Secretary certified that the citation,
petition, and order granting substitute service were received by his office on October 7,
2021. A copy of these documents was then forwarded on October 18, 2021, to 5803 N.
John Stockbauer, Suite E, Victoria, TX 77904. The Secretary explained that process “was
4 returned to this office on November 12, 2021, Bearing the Notation, Return to Sender,
Not Deliverable as Addressed, Unable to Forward.”
B. Final Default Judgment
On January 12, 2022, the trial court signed a final default judgment. This judgment
recited, “The Court has considered the pleadings and records on file in this cause and the
evidence and is of the opinion that judgment should be rendered for Plaintiffs.” The
judgment granted: (1) $26,430.00 “as the principal amount due”; (2) $7,754.71 “as
attorney’s fees”; (3) $816.46 “for costs of court”; and (4) post-judgment interest on all of
the above at a rate of 5% per annuum until the judgment is paid in full. The judgment also
awarded to Pridgen and Pridgen Welding several vehicles and portable buildings, as well
as “[a]ll contents in the [p]ortable buildings and on the property left by [d]efendants.”
C. Motions for New Trial
On January 27, 2022, DeRouen and DeRouen Services filed a motion for new trial.
The motion asked that a new trial be granted because: (1) neither DeRouen nor DeRouen
Services received actual notice of the suit; (2) DeRouen and DeRouen Services had a
meritorious defense, specifically, they contested the amount due under the contract and
whether they were proper parties to the lawsuit; and (3) granting a new trial would neither
cause delay nor injure Pridgen and Pridgen Welding.
Attached to the motion for new trial was an affidavit signed by DeRouen. According
to this affidavit, DeRouen never lived at the 1402 N. Henry address, and Martin did not
pass on a copy of the citation or petition to DeRouen. Additionally, DeRouen averred that
though “Rogers was the Registered Agent for the LLC, [he] never . . . provided a copy of
5 the citation or suit to [DeRouen].” DeRouen also explained that he had engaged two
separate attorneys to assist him with negotiations with Pridgen; neither of whom informed
DeRouen of the pending litigation. Lastly, DeRouen stated,
Once I discovered there was a lawsuit, I called the [c]ourt clerk’s office[,] . . . and the clerk let me know someone was trying to serve [me] with a lawsuit. The clerk told me to wait until I was served with citation, and then to keep calling to see if there’s a court date to attend.
DeRouen filed an amended motion for new trial on January 28, 2022, claiming that a new
trial should be granted because: (1) “The default was rendered without proper service on
Defendants”; (2) “Defendants’ failure to appear should be excused”; (3) “It has not been
more than 30 days since judgment . . . was rendered”; and (4) “Defendants have a
meritorious defense to Plaintiffs’ claims.” No further detail was included. DeRouen neither
mentioned nor attached his prior affidavit or any other sworn document to the motion.
On February 8, 2022, Pridgen and Pridgen Welding filed a response to the
amended motion for new trial, claiming that they strictly complied with the rules governing
service. The response also provided more detail into why they believed 1402 N. Henry
was a proper address for substitute service. For instance, attached to the response was
a copy of DeRouen’s final decree of divorce that was signed on May 27, 2021, and
awarded DeRouen “[a]ny interest the parties have in real property located at 1402 N.
Henry, Cuero, Texas.”2
The court held a hearing on February 15, 2022. No testimony or evidence was
presented in support of or opposition to the motion for new trial. However, the court heard
2 This document was not attached to either motion for substitute service.
6 argument from the parties’ attorneys. DeRouen’s attorney primarily argued that substitute
service was not reasonably calculated to reach DeRouen individually. The trial court
denied the amended motion for new trial at the conclusion of the hearing and signed an
order to that effect the same day.
D. Amended Default Judgment
DeRouen and Derouen Services filed a timely notice of appeal on March 14, 2022.
However, on March 16, 2022, Pridgen and Pridgen Welding filed a motion to amend the
default judgment, explaining that they had a “desire to have the original Default Judgment
amended to include anticipated reasonable and necessary attorney[’s] fees should
Plaintiffs prevail in an appeal of this judgment.” The motion contended that it was “timely
file[d]” and worked to “extend the trial court’s plenary power.” On April 18, 2022, DeRouen
and DeRouen Services filed a response and objection to Pridgen’s motion, arguing that
the trial court’s plenary power had expired and that they objected to any amending of the
default final judgment.
The trial court signed an amended default judgment on April 27, 2022. This
amended judgment mirrored the language of the original default judgment in all respects
save one: it awarded appellate attorney’s fees to Pridgen and Pridgen Welding. This
appeal followed.
II. AMENDED FINAL JUDGMENT
By their first issue, DeRouen and DeRouen Services contend that the trial court
lost plenary power to amend its judgment and that the April 27, 2022 amended default
judgment should be vacated. Pridgen and Pridgen Welding concede error.
7 A. Standard of Review & Applicable Law
A judgment is void if it was signed after the trial court’s plenary power expired.
State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995). “[A]ppellate courts do not
have jurisdiction to address the merits of appeals from void orders or judgments; rather,
they have jurisdiction only to determine that the order or judgment underlying the appeal
is void and make appropriate orders based on that determination.” Freedom Commc’ns,
Inc. v. Coronado, 372 S.W.3d 621, 623 (Tex. 2012). A trial court’s jurisdiction to enter an
order is a question of law we review de novo. In re C.G., 495 S.W.3d 40, 43 (Tex. App.—
Corpus Christi–Edinburg 2016, pet. denied).
“A motion for new trial, if filed, shall be filed prior to or within thirty days after the
judgment or other order complained of is signed.” TEX. R. CIV. P. 329b(a).
If a motion for new trial is timely filed by any party, the trial court, regardless of whether an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment until thirty days after all such timely-filed motions are overruled, either by a written and signed order or by operation of law, whichever occurs first.
Id. R. 329b(e). “[A] motion for new trial filed after a preceding motion has been overruled
is not ‘timely’ for purposes of extending the trial court’s plenary power.” In re Brookshire
Grocery Co., 250 S.W.3d 66, 70 (Tex. 2008) (orig. proceeding).
B. Analysis
Here, the trial court denied DeRouen and DeRouen Services’ amended motion for
new trial on February 15, 2022. Therefore, the trial court’s plenary power over its January
12, 2022 judgment expired on March 17, 2022. See TEX. R. CIV. P. 329b(e). Pridgen’s
motion for amended default judgment, filed on March 16, 2022, did nothing to extend the
8 trial court’s plenary power. See In re Brookshire Grocery Co., 250 S.W.3d at 70.
Therefore, because the trial court’s plenary power had already expired when it signed its
April 27, 2022 judgment, we sustain DeRouen’s and DeRouen Services’ first issue and
declare the April 27, 2022 judgment void. See State ex rel. Latty, 907 S.W.2d at 486.
Nonetheless, this leaves intact the trial court’s January 12, 2022 judgment. See id. We
will review DeRouen’s and DeRouen Services’ remaining issues with respect to that
judgment.
III. SERVICE
By their second issue, DeRouen and DeRouen Services argue that the trial court
erred by granting a default judgment when substitute service was ineffective.
A. Standard of Review & Applicable Law
A court obtains jurisdiction over a defendant through valid service of process or
through the defendant’s appearance. Mapco, Inc. v. Carter, 817 S.W.2d 686, 687 (Tex.
1991); see also Dansk Express, LLC v. IPFS Corp., No. 01-22-00621-CV, 2023 WL
4937497, at *3 (Tex. App.—Houston [1st Dist.] Aug. 3, 2023, no pet. h.) (mem. op.). “In a
default judgment case in which jurisdiction is based on substituted service, jurisdiction
must affirmatively appear from the face of the record.” Onnela v. Medina, 785 S.W.2d
423, 425 (Tex. App.—Corpus Christi–Edinburg 1990, no writ). “We indulge no
presumptions in favor of valid issuance, service, or return of citation.” Spanton v. Bellah,
612 S.W.3d 314, 316 (Tex. 2020). “Accordingly, even if a defendant has received actual
notice of a pending lawsuit, a default judgment rendered upon defective service will not
stand.” Id. “[F]ailure to affirmatively show strict compliance with the Rules of Civil
9 Procedure renders the attempted service of process invalid and of no effect.” Uvalde
Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985) (per curiam).
“Virtually any deviation from the statutory requisites for service of process will destroy a
default judgment.” Creaven v. Creaven, 551 S.W.3d 865, 870 (Tex. App.—Houston [14th
Dist.] 2014, no pet.).
“Substituted service exists to allow plaintiffs to effect service where proof of actual
notice under Rule 106(a) is impractical.” State Farm Fire & Cas. Co. v. Costley, 868
S.W.2d 298, 298 (Tex. 1993). A movant seeking substitute service must support their
motion with a statement “listing any location where the defendant can probably be found
and stating specifically the facts showing that service has been attempted under [Rule
106(a)] at the location named in the statement but has not been successful.” TEX. R. CIV.
P. 106(b). If this is satisfied, Rule 106(b)(1) “allows service by leaving a copy of the citation
and petition with someone over the age of sixteen at the defendant’s place of abode as
stated in the affidavit.” Costley, 868 S.W.2d at 299; see TEX. R. CIV. P. 106(b)(1).
“[S]ubstitute service may not properly issue on a motion supported by an affidavit that is
conclusory or otherwise insufficient.” Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990);
see Lewis v. Ramirez, 49 S.W.3d 561, 564 (Tex. App.—Corpus Christi–Edinburg 2001,
no pet.). We review a trial court’s order authorizing substitute service de novo. Furst v.
Smith, 176 S.W.3d 864, 869–70 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
1. DeRouen, Individually
We first address Pridgen’s argument that DeRouen’s briefing on this issue is
10 inadequate and was therefore waived. We construe appellate briefs “reasonably, yet
liberally, so that the right to appellate review is not lost by waiver.” Perry v. Cohen, 272
S.W.3d 585, 587 (Tex. 2008) (per curiam). In his brief, DeRouen explained that “[n]o
statement was given as to whether DeRouen lived [at 1402 N. Henry], that Garrett had
talked to someone who said he lived there, or any other statement upon which Pridgen
could rely that service at said address would be reasonably effective to give DeRouen
notice of the suit.” DeRouen cites to the clerk’s record, Rule 106, and several relevant
cases, and—albeit in a separate issue—asks this “[C]ourt to find Pridgen’s evidence
insufficient to warrant the trial court’s authorizing Rule 106b substituted service on anyone
over the age of 16 residing at 1402 N. Henry.” We construe this argument as a challenge
to the evidence supporting the finding that DeRouen could likely be found at this address;
therefore, we conclude that this issue is adequately briefed for review. See id.
Pridgen argues that he was only required to include “a sworn statement . . . listing
a place that is one where the defendant ‘can probably be found,’ and describing the
unsuccessful efforts to serve him personally there” in the affidavit attached to his motion
for substitute service. But while the affidavit did contain the dates and times of the service
attempts, “it did not contain evidence of probative value that the address was [a] . . . place
where the defendant could [probably] be found.” See Coronado v. Norman, 111 S.W.3d
838, 842 (Tex. App.—Eastland 2003, pet. denied) (citing Garrels v. Wales Transp., Inc.,
706 S.W.2d 757, 758–59 (Tex. App.—Dallas 1986, no writ)); see also Davis v. Martin,
No. 01-07-00831-CV, 2009 WL 350642, at *5 (Tex. App.—Houston [1st Dist.] Feb. 12,
2009, no pet.) (mem. op.) (concluding that substitute service was improper where the
11 affidavit in support of substitute service did “not state the location of the Davises’ usual
place of business, usual place of abode, or other place where the Davises can probably
be found”). Neither the affidavit nor the motion for substitute service included any facts to
support an inference that DeRouen could probably be found at the 1402 N. Henry
address.
Although the response to the motion for new trial contained additional information
supporting the notion that 1402 N. Henry may be a location where DeRouen could
probably be found, that information was not before the trial court at the time it made its
decision. Therefore, we cannot consider it when determining whether the motion for
substitute service was properly granted. See, e.g., Hornell Brewing Co. v. Lara, 252
S.W.3d 426, 429 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (“[W]e hold that the
better practice is to assess whether the trial court abused its discretion based on the
information available to the trial court at the time of the ruling.”); In re A.W.P., 200 S.W.3d
242, 245 (Tex. App.—Dallas 2006, no pet.) (“In determining whether the trial court
properly granted judgment on the deemed admissions, we consider only the evidence
before the trial court at the time it made that decision.”); In re Harvest Cmtys. of Hous.,
Inc., 88 S.W.3d 343, 349 (Tex. App.—San Antonio 2002, orig. proceeding) (“A judgment
must take its validity from the action of the court at the time it is rendered and not from
what persons may or may not do after the court has rendered the judgment.”); see also
Martinez v. Hauling 365, LLC, No. 13-20-00195-CV, 2022 WL 480251, at *2 n.4 (Tex.
App.—Corpus Christi–Edinburg Feb. 17, 2022, no pet.) (mem. op.) (“We do not consider
these filings as they were not before the trial court when it ruled on Martinez’s motion for
12 new trial, the issue on appeal.”).
Pridgen also argues that a 2020 revision to Rule 106(b)(1) dispensed with the
requirement that a motion for substitute service indicate that the location in question be a
place where the defendant may be found. See Order Amending Texas Rules of Civil
Procedure 106 and 108a, Misc. Docket No. 20-9103 (Tex. Aug. 21, 2020),
https://www.txcourts.gov/media/1449613/209103.pdf. The prior version of Rule 106
allowed the location in the statement to be “the defendant’s usual place of business or
usual place of abode or other place where the defendant can probably be found.” Id. The
amendment to the rule deleted the first two example locations and instead solely required
that the location be “any location where the defendant can probably be found.” Id.
We are unpersuaded by Pridgen’s argument. The comment to the amendment
indicates that the rule was changed to incorporate rules regarding electronic service,
rather than in response to any concern about what facts must be alleged in an
accompanying affidavit, and that other changes to the rule were made primarily for the
purpose of clarification. TEX. R. CIV. P. 106 cmt. (“Rule 106 is revised in response to
section 17.033 of the Civil Practice and Remedies Code, which calls for rules to provide
for substituted service of citation by social media. . . . Other clarifying and stylistic
changes have been made.”). Generally, a defendant’s “usual place of business or usual
place of abode” will likely also be “place[s] where the defendant can probably be found.”
Deleting this superfluous language is consistent with the notion that this modification to
the rule was intended primarily for clarification, rather than to make a substantive change.
If anything, this alteration cemented the requirement that a movant show that the location
13 in their statement is one where the defendant “can probably be found,” rather than any
other location.
Because Pridgen’s motion for substitute service did not contain any evidence that
DeRouen could probably be found at the 1402 N. Henry address, we conclude that the
trial court erred by granting substitute service as it pertained to DeRouen individually. We
sustain this issue as it pertains to DeRouen individually.3
2. DeRouen Services
DeRouen Services focuses its argument on this issue on the fact that the record
does not reflect that Rogers, the registered agent, ever actually received service. The
facts in this case are nearly identical to those of Campus Investments, Inc. v. Cullever,
144 S.W.3d 464 (Tex. 2004) (per curiam), and we are therefore constrained by its holding.
In Cullever, after several unsuccessful attempts to personally serve the defendant’s
registered agent, the plaintiffs requested substitute service on the registered agent via
the Secretary of State. Id. at 465. The trial court granted this request, and the Secretary
“subsequently issued a certificate that he had received and forward[ed] a copy of the
citation and Second Amended Original Petition . . . by certified mail, which was returned
marked ‘Attempted—Not Known.’” Id. The supreme court “recognize[d] that service of a
defective citation through substituted service on the Secretary of State could mislead a
defendant and lead to an improper default judgment.” Id. at 466. However, the supreme
court acknowledged that the defendant in this case “was not misled here because—as it
3 Because this issue is dispositive, we need not address DeRouen’s remaining issues. See TEX.
R. APP. P. 47.1 (“The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.”). 14 had failed to update addresses for its registered agent and registered office—it never
received anything the Secretary sent. Accordingly, [the defendant] was negligent in failing
to comply with its statutory duties.” Id. The supreme court held that “[a] certificate like the
one here from the Secretary of State conclusively establishes that process was served.”
Id.
The same is true here. After multiple attempts to personally serve Rogers,
DeRouen Services’ registered agent, Pridgen sought to serve the entity through the
Secretary of State.4 Based on the supreme court’s holding in Cullever, that Rogers never
actually received a copy of the citation and original petition is not important. See id.
Indeed, the supreme court has since held that “to require proof of actual notice upon
substituted service would frustrate Rule 106(b)’s purpose . . . .” Costley, 868 S.W.2d at
299. What matters is that service was effectuated pursuant to the trial court’s order
granting substitute service, and DeRouen Services does not dispute that specific issue.5
We overrule this issue as it pertains to DeRouen Services.
IV. MOTION FOR NEW TRIAL
By its second issue, DeRouen Services argues that the trial court abused its
discretion by denying its motion for new trial.
4 DeRouen Services argues that it was in the process of changing its registered agent at the time
the Secretary of State attempted to forward service, and it has attached to its brief a document that it contends supports this proposition. However, this document is not part of the appellate record. Therefore, we disregard it. See TEX. R. APP. P. 34.1 (“The appellate record consists of the clerk’s record and, if necessary to the appeal, the reporter’s record.”); Democratic Schs. Rsch., Inc. v. Rock, 608 S.W.3d 290, 305 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (“Documents attached as exhibits or appendices to briefs do not constitute formal inclusion of such documents in the record on appeal, and we cannot consider matters outside the record in our review.”). 5 Moreover, the record reflects substitute service was effectuated in compliance with the trial court’s
order. 15 A. Standard of Review & Applicable Law
“A default judgment should be set aside and a new trial granted if (1) the failure to
answer was not intentional or the result of conscious indifference but was due to a mistake
or accident, (2) if the defendant sets up a meritorious defense, and (3) the motion is filed
at such time that granting a new trial would not result in delay or otherwise injure the
plaintiff.” In re R.R., 209 S.W.3d 112, 114–15 (Tex. 2006) (per curiam); see Craddock v.
Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). “The defaulting party has
the burden of setting forth facts establishing all three elements of the Craddock test.”
Action Powersports, Inc. v. 1STEL, Inc., 500 S.W.3d 632, 639 (Tex. App.—Texarkana
2016, no pet.). “[C]onclusory allegations are insufficient.” Holt Atherton Indus. v. Heine,
835 S.W.2d 80, 82 (Tex. 1992).
“A motion for new trial is addressed to the trial court’s discretion and the court’s
ruling will not be disturbed on appeal in the absence of a showing of an abuse of
discretion.” Dir., State Emps. Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex.
1994). “However, a trial court abuses its discretion by not granting a new trial when all
three elements of the Craddock test are met.” Id.
Here, DeRouen Services initially filed a motion for new trial with an attached
affidavit that contained some factual allegations corresponding to elements of the
Craddock test. However, it then filed an amended motion for new trial that solely
contained conclusory language. “The filing of an amended motion for new trial within the
time provided by Rule 329b is a matter of right and it would be an abuse of discretion for
16 the court to deny leave for its filing.” Consol. Furniture Co. v. Kelly, 366 S.W.2d 922, 923
(Tex. 1963). “An amended motion supersedes and supplants the preceding motion.” Ajao
v. Hall, 654 S.W.3d 22, 28 (Tex. 2022) (first citing W.C. Turnbow Petrol. Corp. v. Fulton,
194 S.W.2d 256, 259 (Tex. 1946); and then citing Williams v. Bayview-Realty Assocs.,
420 S.W.3d 358, 364 (Tex. App.—Houston [14th Dist.] 2014, no pet.)); see also State v.
Seventeen Thousand & No/100 Dollars U.S. Currency, 809 S.W.2d 637, 639 (Tex. App.—
Corpus Christi–Edinburg 1991, no pet.) (“A substituted or amended motion for summary
judgment super[s]edes and supplants the previous motion, which may no longer be
considered.”). Therefore, we may only consider the propriety of the trial court’s actions
with respect to the amended motion for new trial.6
Conspicuously absent from DeRouen Services’ amended motion for new trial are
any facts to support its conclusory claim that it had “a meritorious defense to Plaintiffs’
claims.” Because the trial court had no evidence before it that DeRouen Services had a
meritorious defense to Pridgen’s claims, we conclude that it did not abuse its discretion
in denying the amended motion for new trial. 7 See Reverse Mortg. Funding, LLC v.
Robertson, 599 S.W.3d 52, 56 (Tex. App.—Texarkana 2020, no pet.) (concluding that
because no verified allegations of fact accompanied the conclusory statements in its
motion for new trial, appellant “failed to establish a prima facie meritorious defense”);
Boyes v. Morris Polich & Purdy, LLP, 169 S.W.3d 448, 453–54 (Tex. App.—El Paso 2005,
6 The trial court’s order signed on February 15, 2022, denies only the amended motion for new
trial, and does not mention the original motion for new trial. 7 Because we hold that the third Craddock element was not satisfied, we need not discuss the
other two. See Holt Atherton Indus. v. Heine, 835 S.W.2d 83 (Tex. 1992). 17 no pet.) (“Conclusory allegations do not satisfy the meritorious defense requirement of
Craddock.”). We overrule this issue.
V. PRIDGEN WELDING’S STANDING
In the section of its brief addressing the sufficiency of the evidence, DeRouen
Services also contends that Pridgen Welding “was not a party to the Land Lease and had
no capacity to assert a claim against DeRouen.” Pridgen Welding concedes that it “does
not have a valid claim for open account, breach of contract, or quantum meruit against”
DeRouen or DeRouen Services. It asks us to affirm the default judgment rendered on
January 12, 2022, in all respects, “except as to . . . Pridgen Welding.”8 We appreciate
what is plainly Pridgen Welding’s attempt to deal fairly and honestly. However, “parties to
a suit cannot concede a question of law necessary to the proper disposition of a point on
appeal.” Jackson Hotel Corp. v. Wichita Cnty. Appraisal Dist., 980 S.W.2d 879, 881 n.3
(Tex. App.—Fort Worth 1998, no pet.). Although framed as a question of whether Pridgen
Welding had the capacity to bring its claims, we conclude that the issue we must address
is one of standing.
“Standing is a component of subject matter jurisdiction that courts review de novo.”
Sneed v. Webre, 465 S.W.3d 169, 180 (Tex. 2015). When reviewing standing for the first
time on appeal, we “must construe the petition in favor of the party, and if necessary,
review the entire record to determine if any evidence supports standing.” Tex. Ass’n of
Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).
8 Neither party has briefed the issue of standing.
18 “A plaintiff has standing when it is personally aggrieved, regardless of whether it is
acting with legal authority; a party has capacity when it has the legal authority to act,
regardless of whether it has a justiciable interest in the controversy.” Coastal Liquids
Transp., L.P. v. Harris Cnty. Appraisal Dist., 46 S.W.3d 880, 884 (Tex. 2001) (cleaned
up). “A plaintiff does not lack standing simply because he cannot prevail on the merits of
his claim; he lacks standing because his claim of injury is too slight for a court to afford
redress.” DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 305 (Tex. 2008). “A party
must have both standing and capacity to bring a lawsuit. And while standing as an issue
cannot be waived, capacity can be.” Id. “To show constitutional standing, a plaintiff must
demonstrate that: (1) it suffered a concrete and particularized injury-in-fact; (2) the injury
is fairly traceable to the defendant’s conduct; and (3) a favorable decision is likely to
redress the injury.” McLane Champions, LLC v. Hous. Baseball Partners LLC, 671
S.W.3d 907, 912–13 (Tex. 2023).
Here, Pridgen Welding did not and does not assert that it suffered any
particularized injury-in-fact because of DeRouen and DeRouen Services’ actions. See id.
Indeed, the redress sought by the petition is damages for alleged injuries suffered by
Pridgen, not Pridgen Welding. See Warth v. Seldin, 422 U.S. 490, 515–16 (1975)
(discussing an association’s standing to bring a claim on behalf of its members generally);
Farmers Tex. Cnty. Mut. Ins. v. Beasley, 598 S.W.3d 237, 242 (Tex. 2020) (“Thus, Forth
did not claim that Allstate’s settlement caused her any injury and therefore she lacked
standing to sue.”). Therefore, we conclude that Pridgen Welding lacks standing in this
19 matter, and we dismiss its claims for want of jurisdiction.
VI. SUFFICIENCY OF THE EVIDENCE
By its final issue, DeRouen Services argues that the evidence was insufficient to
hold it liable for any breach of contract. Specifically, it argues that “Pridgen failed to
present any evidence of DeRouen [Services’] consent to be bound by the Land Lease, or
that DeRouen’s signature on the Land Lease was made in any capacity other than his
individual capacity.” It also argues that “[t]he only viable cause of action asserted by
Pridgen is one for breach of contract.”
First, the trial court’s judgment does not state which cause of action it found
meritorious; it simply states that “judgment should be rendered for Plaintiffs.” DeRouen
Services does not explain why Pridgen only having one viable cause of action “probably
caused the rendition of an improper judgment,” and because such a conclusion is not
supported by the record, we must overrule it. See TEX. R. APP. P. 44.1(a)(1).
Second, “the non-answering party in a no-answer default judgment is said to have
admitted both the truth of facts set out in the petition and the defendant’s liability on any
cause of action properly alleged by those facts.” Paradigm Oil, Inc. v. Retamco Operating,
Inc., 372 S.W.3d 177, 183 (Tex. 2012); see Dodd v. Savino, 426 S.W.3d 275, 292–93
(Tex. App.—Houston [14th Dist.] 2014, no pet.) (“If the facts set forth in the petition allege
a cause of action, the default judgment conclusively establishes the defendant’s
liability. . . . Consequently, appellants are precluded from asserting a challenge to the
sufficiency of the evidence.”). “The defendant’s default thus establishes liability, but a trial
may still be necessary if the plaintiff’s damages are unliquidated.” Paradigm Oil, 372
20 S.W.3d at 183.
DeRouen Services does not challenge the sufficiency of the pleadings or
unliquidated damages, but instead challenges the sufficiency of the evidence to reverse-
pierce the corporate veil. “Alter ego, or piercing the corporate veil, is not an independent
cause of action, but is instead a means of imposing liability for the underlying cause of
action.” Dodd, 426 S.W.3d at 291. DeRouen Services, having failed to file an answer prior
to a valid default judgment, cannot now challenge the sufficiency of the evidence to
establish liability. See id. at 292; Paradigm Oil, 372 S.W.3d at 183; see also Morgan v.
Compugraphic Corp., 675 S.W.2d 729, 731 (Tex. 1984) (“[I]f the facts set out in the
petition allege a cause of action, a default judgment conclusively establishes the
defendant’s liability.”).
We overrule DeRouen Services’ final issue.
VII. CONCLUSION
We vacate the trial court’s amended default judgment signed on April 27, 2022.
We reverse and remand the January 12, 2022 judgment as it pertains to DeRouen
individually. We reverse and render judgment dismissing Pridgen Welding’s claims for
want of jurisdiction. We affirm the trial court’s January 12, 2022 judgment only as it
pertains to the judgment rendered in favor of Pridgen and against DeRouen Services.
GINA M. BENAVIDES Justice
Delivered and filed on the 9th day of November, 2023.