Affirm and Opinion Filed September 24, 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

Before Justices Myers, Partida-Kipness, and Carlyle

Opinion by Justice Myers

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 
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the merits at which appellee prevailed. We also conclude 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. We affirm the trial court’s judgment.

BACKGROUND

In 2006, David Varela and two partners purchased property in Dallas. 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.”

In 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. 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 issue was resolved through amending the lease and by 

Flores becoming a guarantor of American Pride’s performance of the lease. Varela 

testified he assigned the lease to Joe Jordan Trucks, Inc. by 2009, but he did not 

make a written assignment of the lease. However, he instructed his CPA to report 

income from the property on appellee’s income tax return.

Varela testified that in 2010, he intended to deed the property to appellees,

“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. 
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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 or January 2016 that Flores was claiming his 

accountant owned the property. That was also when Varela learned the 2010 deed 

misnamed the grantee. Cox drafted and 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.

1

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 

in 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.

1 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 those claims 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 appellee was not a party to the lease.

The trial court’s ruling2 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 

2 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.3 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. 

3 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 by 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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The appellant has the burden to bring forward an appellate record showing 

reversible error. Schafer v. Conner, 813 S.W.2d 154, 155 (Tex. 1991) (per curiam); 

Uhmeh v. Rivas, No. 05-15-00784-CV, 2016 WL 3442378, at *1 (Tex. App.—Dallas 

June 22, 2016, no pet.). Review of the sufficiency of the evidence requires a 

complete reporter’s record. Schafer, 813 S.W.2d at 155; Sareen v. Sareen, 350 

S.W.3d 314, 317 (Tex. App.—San Antonio 2011, no pet.). When the reporter’s 

record is incomplete, the reviewing court presumes the missing testimony supports 

the trial court’s judgment.4 Schafer, 813 S.W.2d at 155; Birnbaum v. Law Offices 

of G. David Westfall, P.C., 120 S.W.3d 470, 476–77 (Tex. App.—Dallas 2003, pet. 

denied). “This is because without a complete reporter’s record, it is impossible to 

review all the evidence presented to the trier of fact or to apply the appropriate 

sufficiency standards.” Sareen, 350 S.W.3d at 317.

During appellee’s case in chief, it presented the testimony of Lee Cox, the 

attorney who prepared the deed that named “Joe Jordan, Inc.” as the grantee in the 

2009 deed and who later prepared the correction deed. Cox testified through a 

videotaped deposition. Before the testimony was played for the jury, appellants’ 

attorney told the court, “We have asked that the court reporter not transcribe this 

4 Under Rule of Appellate Procedure 34.6(c), a party may appeal without a complete record by 

designating certain portions of the reporter’s record, and the appellate court must presume the incomplete 

record is complete for purposes of the appeal. See TEX. R. APP. P. 34.6(c). Strict compliance with the rule 

is required for the presumption to apply. $4,310 in U.S. Currency v. State, 133 S.W.3d 828, 829 (Tex. 

App.—Dallas 2004, no pet.). Appellants did not purport to follow rule 34.6(c).
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portion since we’ve got a transcript of it.” However, the transcript of Cox’s 

testimony was not made part of the record.

Without Cox’s testimony, the reporter’s record is incomplete, and we must 

presume his testimony supported the trial court’s judgment. Schafer, 813 S.W.2d at 

155; Birnbaum, 120 S.W.3d at 476–77. Appellants created this situation by 

requesting that Cox’s testimony not be recorded by the court reporter and by failing 

to make a transcription of Cox’s testimony part of the record. We conclude 

appellants have failed to show the trial court erred by denying their motion for 

directed verdict. We overrule their third point of error.

CONCLUSION

We affirm the trial court’s judgment.

200281f.p05

/Lana Myers//

LANA MYERS

JUSTICE
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

AMERICAN PRIDE XPRESS 

LOGISTICS, INC. and THOMAS E. 

FLORES, INDIVIDUALLY, 

Appellants

No. 05-20-00281-CV V.

JOE JORDAN TRUCKS, INC., 

Appellee

On Appeal from the 191st Judicial 

District Court, Dallas County, Texas

Trial Court Cause No. DC-15-07192.

Opinion delivered by Justice Myers. 

Justices Partida-Kipness and Carlyle 

participating.

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 appellants AMERICAN PRIDE XPRESS LOGISTICS, 

INC. and THOMAS E. FLORES, INDIVIDUALLY.

Judgment entered this 24th day of September, 2021.