Affirm and Opinion Filed December 3, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00281-CV
AMERICAN PRIDE XPRESS LOGISTICS, INC. AND THOMAS E.
FLORES, INDIVIDUALLY, Appellants
V.
JOE JORDAN TRUCKS, INC., Appellee
On Appeal from the 191st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-15-07192
MEMORANDUM OPINION ON MOTION FOR REHEARING
Before Justices Myers, Partida-Kipness, and Carlyle
Opinion by Justice Myers
This Court’s opinion of September 24, 2021 is withdrawn and the judgment
is vacated. The following is now the opinion of this Court.
American Pride Xpress Logistics, Inc. and Thomas E. Flores appeal the trial
court’s judgment on a jury verdict in favor of Joe Jordan Trucks, Inc. awarding it
damages of $300,000 plus attorney’s fees. Appellants bring three issues on appeal
contending the trial court erred by (1) denying appellants’ motion to dismiss under
Rule of Civil Procedure 91a, (2) denying appellants’ motion for summary judgment,
and (3) denying appellants’ motion for directed verdict. We conclude the denials of
appellants’ motion to dismiss under Rule 91a and motion for summary judgment are
not orders that can be reviewed on appeal from a final judgment following a trial on
the merits at which appellee prevailed. On original submission, we also concluded
appellants failed to show the trial court erred by denying the motion for directed
verdict because they did not bring a complete reporter’s record of the trial.
Following issuance of the original opinion and judgment, appellants supplemented
the record to include the missing testimony. We have reviewed the now-complete
reporter’s record, and we conclude the trial court did not err by denying the motion
for directed verdict. We affirm the trial court’s judgment, and we deny appellants’
motion for rehearing.
BACKGROUND
In January 2006, David Varela and two partners purchased property in Dallas.
The deed named Varela as the grantee. In May 2006, Varela formed a corporation,
Joe Jordan Trucks, Inc., to manage the property. Although the name of the company
was “Joe Jordan Trucks, Inc.,” Varela testified that he and others in the business
office referred to the company as “Joe Jordan, Inc.”
On October 18, 2007, “David Varela and/or assigns” leased the property to
American Pride Xpress Logistics, Inc., a corporation owned by Thomas Flores, for
a term ending October 31, 2011. Varela testified the lease stated the landlord was
“David Varela and/or assigns” because he and his partners “had the plan to move the
property to the entity,” Joe Jordan Trucks, Inc.
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American Pride was frequently late in paying the rent, and Varela notified
American Pride in 2008 that it was in default and would be evicted if the default was
not cured. The parties resolved the issue by amending the lease on January 22, 2009.
Under the amended lease, Flores became a guarantor of American Pride’s
performance of the lease.
Varela testified he assigned the lease to Joe Jordan Trucks, Inc. “by 2009” and
before the January 22, 2009 amendment to the lease, but he did not make a written
assignment of the lease.1 However, he instructed his CPA to report income from the
property on appellee’s income tax return. The CPA testified that the income from
the property was reported on appellee’s tax return.
Varela testified that in 2010, he intended to deed the property to “Joe Jordan
Trucks, Inc.,” but he mistakenly instructed his attorney, Lee Cox, to make the
grantee in the deed “Joe Jordan, Inc.” No such corporation existed at the time. The
mistake was not discovered until late 2016 or early 2017.
1
Appellants assert in their motion for rehearing that this assignment violated the statute of frauds.
Appellants did not present this assertion in their briefing. The statute of frauds is not jurisdictional. Kovar
v. Seay, No. 10-19-00273-CV, 2020 WL 7687873, at *3 (Tex. App.—Waco Dec. 22, 2020, pet. denied)
(mem. op.). An appellant generally may not raise nonjurisdictional issues for the first time in a motion for
rehearing. Segundo Navarro Drilling, Ltd. v. San Roman Ranch Mineral Partners, Ltd., 612 S.W.3d 489,
496 (Tex. App.—San Antonio 2020, pet. denied); OAIC Commercial Assets, L.L.C. v. Stonegate Vill., L.P.,
234 S.W.3d 726, 747 (Tex. App.—Dallas 2007, pet. denied) (“The sole purpose of a motion for rehearing
is to provide the court an opportunity to correct any errors on issues already presented.”). ICM Mortg.
Corp. v. Jacob, 902 S.W.2d 527, 535 (Tex. App.—El Paso 1994, writ denied) (“Rehearing is not an
opportunity to test alternative arguments after finding other arguments unsuccessful.”). Accordingly, we
do not address that assertion.
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Meanwhile, in 2014, Varela learned American Pride was excavating and
selling sand mined from the property. Varela demanded that American Pride cease
and desist from these activities. When American Pride continued excavating, this
lawsuit with “Joe Jordan, Inc.” as plaintiff was filed against American Pride and
Flores in 2015.
American Pride stopped paying rent after December 2016. On December 14,
2016, Flores formed a corporation called “Joe Jordan, Inc.,” and two days later, on
December 16, 2016, Flores signed a quitclaim deed purporting to cause “Joe Jordan,
Inc.” to transfer the property to Flores. Three days later, on December 19, 2016,
Flores signed a special warranty deed purporting to convey the property to Frederick
Brown, Flores’s accountant.
Varela learned in December 2016 or January 2017 that Flores was claiming
his accountant owned the property. That was also when Varela learned the 2010
deed misnamed the grantee. Varela signed a correction warranty deed correcting the
misnomer on the 2010 deed to show the grantee was “Joe Jordan Trucks, Inc.”
Varela amended the 2015 petition repeatedly, changing the plaintiff to “Joe
Jordan Trucks, Inc.” and alleging causes of action, including breach of contract,
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concerning appellants’ unauthorized mining of the property and their failure to pay
rent.2
Flores testified he had been doing business as “Joe Jordan, Inc.” since 2008
even though the corporation did not then exist. Flores testified he agreed with Varela
and his partners in 2010 to purchase the property by making monthly payments.
According to Flores, they agreed that Flores would own the property when his
monthly payments totaled $600,000. Varela asked Flores who should be the grantee
in the deed, and Flores said “Joe Jordan, Inc.” Flores testified he made the last
payment in December 2016 and then officially formed the corporation Joe Jordan,
Inc. He then transferred the property from Joe Jordan, Inc. to himself and then to
Brown as collateral for the use of a piece of equipment Brown owned.
Flores testified he used the property for parking trucks. He said the property
had been used previously as an auto salvage yard, and there were pieces of metal in
the ground that could damage the trucks. Flores excavated the dirt and sand on one
area of the property down to about twenty feet, sifted out the metal, and then filled
the hole by combining the removed sand with other materials. He testified this
combination of materials, which he compacted, hardened the surface and made it
better suited for parking trucks. Flores testified he did not sell the sand he removed.
2
Appellee also brought causes of action concerning appellants’ deeding the property from Joe Jordan,
Inc. to Flores and from Flores to Brown. Those claims were not part of the motions and orders relevant to
this appeal, and they were not submitted to the jury.
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In 2017, appellants filed a motion to dismiss appellee’s breach of contract
claims under Rule 91a, asserting appellee’s petition did not allege that appellee was
a party to or an assignee of the 2007 lease. The trial court denied that motion.
Appellants then filed a motion for summary judgment asserting that because
appellee was not a party to the lease, it could not enforce the lease. Appellee
amended the petition to allege that after the transfer of the property in 2010, “the
lease in question was internally transferred to the corporation, Joe Jordan Trucks,
Inc.”
In 2019, the case proceeded to a jury trial. After appellee rested its case in
chief, appellants moved for a directed verdict on the ground that appellee was never
a party to the dispute. The trial court denied the motion for directed verdict.
Appellants then presented their case in chief.
The jury found there was a lease between appellee and appellants, that
appellants failed to comply with the lease by causing damage to the property and by
failing to make rental payments, and that appellee’s damages for accrued unpaid
rental and for damage to the property were $175,250 and $124,750, respectively.
The trial court rendered judgment on the verdict awarding appellee damages of
$300,000 plus additional amounts for attorney’s fees.
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DENIAL OF PRETRIAL MOTIONS
In their first and second issues, appellants contend the trial court erred by
denying appellants’ Rule 91a motion to dismiss and motion for summary judgment
on appellee’s breach of contract claims because it was not a party to the lease.
The trial court’s ruling3 denying the motion for summary judgment is not one
we can review. “The denial of a motion for summary judgment when followed by a
conventional trial on the merits does not finally decide any issue before the trial
court,” and the order denying the motion may not be grounds for reversal of a final
judgment. Anderton v. Schindler, 154 S.W.3d 928, 931 (Tex. App.—Dallas 2005,
no pet.); see also Clark v. Dillard’s, Inc., 460 S.W.3d 714, 724 (Tex. App.—Dallas
2015, no pet.). We overrule appellants’ second issue.
Under Rule 91a, a party may move to dismiss a cause of action on the ground
it has no basis in law or fact. TEX. R. CIV. P. 91a.1. “A cause of action has no basis
in law if the allegations, taken as true, together with the inferences reasonably drawn
from them, do not entitle the claimant to the relief sought.” Id. In ruling on a Rule
91a motion to dismiss, the trial court may not consider evidence and must decide the
motion “solely on the pleading of the cause of action, together with any pleading
3
The record does not contain an order expressly denying appellants’ motion for summary judgment.
However, the discussion of the motion for directed verdict in the reporter’s record includes statements by
the trial court and the parties that suggest the trial court denied the motion for summary judgment. Appellee
does not assert that appellants failed to obtain a ruling on the motion for summary judgment. Although it
is not clear that appellants preserved error for appellate review by obtaining an express or implied ruling
on their motion for summary judgment, see TEX. R. APP. P. 33.1(a)(2), in the interest of justice, we will
presume that the trial court denied the motion for summary judgment.
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exhibits permitted by Rule 59.” TEX. R. CIV. P. 91a.6; Highland Capital Mgmt., LP
v. Looper Reed & McGraw, P.C., No. 05-15-00055-CV, 2016 WL 164528, at *4
(Tex. App.—Dallas Jan. 14, 2016, pet. denied) (mem. op.). “We review the merits
of a Rule 91a motion de novo because the availability of a remedy under the facts
alleged is a question of law and the rule’s factual-plausibility standard is akin to a
legal-sufficiency review.” City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex.
2016) (per curiam).
When the trial court denies a Rule 91a motion to dismiss and the case proceeds
to a trial on the merits at which the plaintiff prevails, the motion to dismiss becomes
irrelevant and its denial is moot because the plaintiff “has proved, not merely alleged,
facts sufficient to support relief.” Raider Ranch, LP v. Lugano, Ltd., 579 S.W.3d
131, 133 (Tex. App.—Amarillo 2019, no pet.) (quoting Bennett v. Pippin, 74 F.3d
578, 585 (5th Cir. 1996) (discussing appealability of denial of FED. R. CIV. P.
12(b)(6) motion to dismiss when the plaintiff prevails in a subsequent trial on the
merits)).
That is the situation in this case: appellants filed a Rule 91a motion to dismiss
appellee’s breach of contract claims, the trial court denied the motion to dismiss, and
the case proceeded to a conventional trial on the merits at which appellee prevailed
on the breach of contract claims. The jury found “a lease and/or guarantee agreement
exist[ed] between” appellee and appellants. The trial court rendered judgment on
the verdict for appellee. At that point, the Rule 91a motion to dismiss became
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irrelevant and the trial court’s denial of the motion became moot because appellee
had proved, and not merely alleged, that the breach of contract claims had a basis in
law and fact.
We conclude the trial court’s denial of appellants’ Rule 91a motion to dismiss
is moot and is not a ruling we may consider on appeal in this case.4 We overrule
appellants’ first issue.
DENIAL OF MOTION FOR DIRECTED VERDICT
In their third issue, appellants contend the trial court erred by denying their
motion for directed verdict. Like the motion for summary judgment and the Rule
91a motion to dismiss, the motion for directed verdict argued appellee lacked
standing to assert the breach of contract claims because it was not a party to the lease.
Appellants waived any error from the denial of their motion for directed
verdict. Although they moved for a directed verdict after appellee rested, and the
trial court denied the motion, they proceeded to present their own evidence and did
not re-urge the motion for directed verdict when the evidence closed. “If a party
proceeds to present evidence after that party has moved for a directed verdict, such
party must reurge the motion for directed verdict at the close of the case, or any error
in its denial is waived.” 1986 Dodge 150 Pickup Vin No. 1B7FD14T1GS006316 v.
State, 129 S.W.3d 180, 183 (Tex. App.—Texarkana 2004, no pet.); see Elliott v.
4
Whether the denial of a Rule 91a motion to dismiss may be considered on appeal when the plaintiff
did not prevail at trial is not before us, and we make no holding on that situation.
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Lewis, No. 05-91-01216-CV, 1994 WL 709333, at *7 (Tex. App.—Dallas Dec. 16,
1994, no pet.) (not designated for publication). Because appellants presented their
own case in chief after the trial court denied their motion for directed verdict and did
not re-urge their motion for directed verdict at the close of the evidence, they waived
the trial court’s denial of the motion for directed verdict.
Even if the motion for directed verdict were not waived by appellants’
presentation of evidence after the denial of the motion and their failure to re-urge the
motion at the close of the case, we must conclude the record does not show the trial
court erred in denying the motion. The standard of review for a ruling on a motion
for directed verdict is a legal sufficiency or “no evidence” standard of review. L.G.
Ins. Mgmt. Servs., L.P. v. Leick, 378 S.W.3d 632, 642 (Tex. App.—Dallas 2012, pet.
denied). In reviewing the legal sufficiency of the evidence, we must determine
whether the nonmovant produced more than a scintilla of probative evidence to raise
a fact issue on the material questions presented. Id. We consider all the evidence in
the light most favorable to the nonmovant, indulging every reasonable inference and
resolving any doubts against the movant. Sudan v. Sudan, 199 S.W.3d 291, 292
(Tex. 2006) (per curiam) (quoting City of Keller v. Wilson, 168 S.W.3d 802, 823
(Tex. 2005)). A directed verdict is improperly granted if the respondent brings forth
more than a scintilla of probative evidence to raise a genuine issue of material fact.
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).
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To establish standing to maintain a breach of contract action, a plaintiff must
show either privity or that it is a third-party beneficiary of the contract. OAIC
Commercial Assets, L.L.C v. Stonegate Vill., L.P., 234 S.W.3d 726, 738 (Tex.
App.—Dallas 2007, pet. denied). For purposes of standing, privity is established by
proving the defendant was a party to an enforceable contract with either the plaintiff
or a party who assigned its cause of action to the plaintiff. Id.
In this case, the original lease in 2007 was between “David Varela and or
Assigns” and American Pride. Varela testified he transferred the lease to appellee
“by 2009.” On January 22, 2009, the lease was amended. The amendment was
“entered into by and between David Varela (as trustee for himself and others)
(‘Landlord’) and American Pride Xpress Logistics, Inc., a Texas corporation
(‘Tenant’), and is joined by Thomas E. Flores, individually (‘Guarantor’).” The
amendment was signed by Varela on a signature line below the word “Landlord.”
Appellants argue that even if Varela assigned the lease to appellee before the
amendment of the lease in 2009, the amendment of the lease conclusively
established that appellee was not a party to or assigned the amended lease, so
appellee lacked standing to bring suit. Appellants assert the evidence conclusively
established Varela signed the 2009 amendment in his individual capacity and not on
behalf of appellee. We disagree. The evidence does not conclusively establish the
capacity in which Varela signed the 2009 amendment. He testified he “signed for
the Landlord.” “Landlord” was defined in the 2009 amendment as “David Varela
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(as trustee for himself and others).” Thus, there is some evidence that Varela did not
sign in his original capacity but as “trustee for himself and others.” Who the “others”
were is not clear. Varela testified the others may have been his partners. The
evidence of the original lease and its assignment and the 2009 amendment’s
definition of “Landlord” may raise a fact question as to whether appellee owned the
lease following the 2009 amendment, but the evidence does not conclusively
establish “others” did not include appellee.
Furthermore, Varela’s accountant testified that after 2008, appellee held the
property and leased it. He testified that “all the business conducted, the lease,
collection of rent, and then the payment of expenses such as property taxes, and so
forth, handled for [the property], handled through Joe Jordan Trucks, Inc., for each
year after 2009 [sic].”5 This testimony is some evidence that appellee was the
landlord for the property after the 2009 amendment. See Taylor Hous. Auth. v.
Shorts, 549 S.W.3d 865, 869–70 (Tex. App.—Austin 2018, no pet.) (paying property
taxes is typical duty of landlord); Hua Xu v. Lam, No. 14-13-00730-CV, 2014 WL
579475, at *1 (Tex. App.—Houston [14th Dist.] Nov. 6, 2014, no pet.) (collection
of rent is typical duty of landlord).
We conclude the trial court did not err by denying appellants’ motion for
directed verdict because the record contains more than a scintilla of evidence that
5
The accountant testified that in 2009, appellee received rental income for the property of $95,000.
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appellee owned the lease and had standing to bring suit. We overrule appellants’
third issue.
CONCLUSION
We affirm the trial court’s judgment.
/Lana Myers//
200281f.p05 LANA MYERS
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
AMERICAN PRIDE EXPRESS On Appeal from the 191st Judicial
LOGISTICS, INC. and THOMAS E. District Court, Dallas County, Texas
FLORES, INDIVIDUALLY, Trial Court Cause No. DC-15-07192.
Appellants Opinion delivered by Justice Myers.
Justices Partida-Kipness and Carlyle
No. 05-20-00281-CV V. participating.
JOE JORDAN TRUCKS, INC.,
Appellee
This Court’s judgment of September 24, 2021 is VACATED. The
following is now the judgment of this Court:
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee JOE JORDAN TRUCKS, INC. recover its
costs of this appeal from appellant AMERICAN PRIDE EXPRESS LOGISTICS,
INC. and THOMAS E. FLORES, INDIVIDUALLY.
Judgment entered this 3rd day of December, 2021.
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