Opinion issued August 30, 2018

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-16-00633-CV

———————————

DONATO POLIGNONE AND NEAL D. ROY, Appellants

V.

BULLDOG CHEMICALS, LLC, Appellee

On Appeal from the 152nd District Court

Harris County, Texas

Trial Court Case No. 2015-71346

MEMORANDUM OPINION

Appellants, Donato Polignone and Neal D. Roy, (collectively, “appellants”)

challenge the trial court’s no-answer default judgment1in favor of appellee, Bulldog 

 

1 See Paradigm Oil, Inc. v. Retamco Operating, Inc., 372 S.W.3d 177, 183 (Tex.

2012) (no-answer default judgment constitutes “a default judgment caused by a 

defendant’s failure to answer after service.”).
2

Chemicals, LLC (“Bulldog Chemicals”), in its suit against them for breach of 

contract and quantum meruit. In two issues, appellants contend that the trial court 

erred in not granting their motion for new trial and rendering judgment against them

in their individual capacities.

We affirm.

Background

In its original petition, Bulldog Chemicals alleged that it entered into an 

agreement with appellants “for [the] purchase of goods, wares, merchandise, 

materials and/or services.” In exchange for Bulldog Chemicals’s agreement to 

“furnish[]” and “deliver[]” to appellants certain goods, appellants “agreed to pay”

Bulldog Chemicals $21,750. However, after Bulldog Chemicals “shipped the 

goods” to appellants, they refused to pay the “amount owed.” Bulldog Chemicals

further asserted that appellants breached the parties’ agreement and owe it $21,750, 

“exclusive of interest.” Moreover, appellants “benefited from the use of the goods” 

and “are indebted in quantum meruit [to Bulldog Chemicals] in the principal sum of 

$21,750[].” And Bulldog Chemicals requested attorney’s fees.

On February 3, 2016, Polignone was personally served with citation and a 

copy of the original petition. On March 2, 2016, Roy was personally served with 

citation and a copy of the original petition. After the returns of citations had been 
3

on file with the clerk of the court for more than ten days2and appellants had failed 

to appear and answer, Bulldog Chemicals moved, on April 28, 2016, for a default 

judgment. On May 11, 2016, the trial court entered a default judgment against 

appellants, finding that they had been “duly and legally served with process” on 

February 3, 2016 and March 2, 2016, they “ha[d] wholly failed to appear or answer,”

they “ha[d] wholly made default,” and “the citation[s] with the officer[s’] return[s]

thereon ha[d] been on file with th[e] [trial] [c]ourt for ten (10) days exclusive of the 

date of filing and [the date of judgment].” The trial court then held that appellants

are liable to Bulldog Chemicals, and it ordered them to pay $21,750 in damages, 

$5,921.04 in attorney’s fees,3 pre- and post-judgment interest, and costs.

On June 9, 2016, appellants filed an unverified4 plea to the jurisdiction, 

arguing that the trial court lacked jurisdiction over Bulldog Chemicals’s suit because 

Bulldog Chemicals did not have standing to bring claims against appellants in their 

individual capacities. They asserted that the agreement to purchase certain goods

“existed exclusively” between Bulldog Chemicals and NuGenTec Oilfield 

Chemicals, LLC (“NuGenTec”).

5

 The trial court did not rule on appellants’ plea.

 

2 See TEX. R. CIV. P. 107(h).

3 The trial court also ordered appellants to pay additional attorney’s fees should they 

unsuccessfully appeal to the court of appeals and the Texas Supreme Court.

4 See TEX. R. CIV. P. 93(1)–(2).

5 We note that “NuGenTec” is spelled differently throughout the record.
4

That same day, appellants also filed an unverified motion for new trial, 

arguing that the original petition “d[id] not support [a] default judgment” against 

them because they “never interacted with [Bulldog Chemicals] as individuals” and 

“[a]ll of their interactions with Bulldog [Chemicals] were based on their capacit[ies] 

as agents of” NuGenTec; “there were defects in service” because Bulldog Chemicals 

“did not send a notice of intent to take a default judgment to the Texas Attorney 

General by certified mail, return receipt requested, at least ten days before filing the 

motion for default judgment”; and appellants’ “failure to answer was not intentional, 

but was accidental,” they “ha[d] a meritorious defense,” and “a new trial w[ould] not 

delay or prejudice” Bulldog Chemicals.

Bulldog Chemicals responded to appellants’ motion for new trial, asserting 

that “the default judgment [was] fully supported by [its] original petition”; appellants 

“were personally served with [its original] petition and citation and service w[as]

proper”; and appellants “failed to satisfy the [requirements of] Craddock [v. 

Sunshine Bus Lines Inc., 133 S.W.2d 124 (Tex. 1939)].”

After a hearing, the trial court denied appellants’ motion for new trial.

Standing

In their second issue, appellants argue that the trial court erred in rendering 

judgment against them in their individual capacities because Bulldog Chemicals

“lack[s] standing” to bring suit against them as individuals.
5

Subject-matter jurisdiction is essential to the authority of a court to decide a 

case, and standing is implicit in the concept of subject-matter jurisdiction. Tex. Ass’n 

of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). Standing is never 

presumed, cannot be waived, and may be raised for the first time on appeal. Id. at 

443–46. We review standing under the same standard by which we review 

subject-matter jurisdiction generally. Id. at 446. Whether a trial court has 

subject-matter jurisdiction is a question of law that we review de novo. Tex. Dep’t 

of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226, 228 (Tex. 2004).

The test for standing requires that there be a real controversy between the 

parties that will actually be determined by the judicial declaration sought. Nootsie, 

Ltd. v. Williamson Cty. Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996). Without 

a breach of a legal right belonging to the plaintiff, no cause of action can accrue to 

its benefit. Nobles v. Marcus, 533 S.W.2d 923, 927 (Tex. 1976). A plaintiff has 

standing when it is personally aggrieved, regardless of whether it is acting with legal 

authority. Nootsie, 925 S.W.2d at 661. And it has standing if: (1) it has sustained, 

or is immediately in danger of sustaining, some direct injury as a result of the 

wrongful act of which it complains; (2) has a direct relationship between the alleged 

injury and claim sought to be adjudicated; (3) has an individual stake in the 

controversy; (4) the challenged action has caused it some injury in fact, either 

economical, recreational, environmental, or otherwise; or (5) it is an appropriate 
6

party to assert the public’s interest in the matter as well as its own interest. Lake 

Medina Conservation Soc’y, Inc./Bexar-Medina-Atascosa Ctys. WCID No. 1 v. Tex. 

Nat. Res. Conservation Comm’n, 980 S.W.2d 511, 515–16 (Tex. App.—Austin 

1998, pet. denied); Billy B., Inc. v. Bd. of Trustees of Galveston Wharves, 717

S.W.2d 156, 158 (Tex. App.—Houston [1st Dist.] 1986, no writ).

A plaintiff has the burden of alleging facts that affirmatively demonstrate a 

court’s jurisdiction to hear a cause. Tex. Ass’n of Bus., 852 S.W.2d at 446. In our 

review of standing, we construe the allegations in the pleadings as true and construe 

them in favor of the pleader. Id.; Juarez v. Tex. Ass’n of Sporting Officials El Paso 

Chapter, 172 S.W.3d 274, 278 (Tex. App.—El Paso 2005, no pet.). We look to the 

facts alleged in the petition, but may consider other evidence in the record if 

necessary to resolve the question of standing. Bland Indep. Sch. Dist. v. Blue, 34 

S.W.3d 547, 555 (Tex. 2000); In re Shifflet, 462 S.W.3d 528, 537 (Tex. App.—

Houston [1st Dist.] 2015, orig. proceeding). The standing inquiry “requires careful 

judicial examination of a complaint’s allegations to ascertain whether the particular 

plaintiff is entitled to an adjudication of the particular claims asserted.” Heckman v. 

Williamson Cty., 369 S.W.3d 137, 153, 156 (Tex. 2012) (internal quotations omitted)

(courts “must assess standing plaintiff by plaintiff, claim by claim”). A challenge to 

standing cannot be used to require the party to prove its entire case but should be 
7

limited to facts that might be characterized as primarily jurisdictional. See Blue, 34 

S.W.3d at 554; In re Shifflet, 462 S.W.3d at 537.

Bulldog Chemicals, in its original petition, alleged that it entered into an 

agreement with appellants to “furnish[]” and “deliver[]” to them certain goods in 

exchange for appellants’ agreement “to pay” Bulldog Chemicals $21,750. After 

Bulldog Chemicals “shipped the goods” to appellants, they refused to pay the 

“amount owed” to Bulldog Chemicals. According to Bulldog Chemicals, appellants 

breached the parties’ agreement and caused Bulldog Chemicals damages in the 

amount of $21,750, “exclusive of interest.” Bulldog Chemicals further alleged that 

appellants “benefited from the use of the goods” and “are indebted in quantum 

meruit [to Bulldog Chemicals] in the principal sum of $21,750[].”

We note that the record also contains an affidavit from Dustin O’Neal, the 

president of Bulldog Chemicals, in which he testifies:

In May 2014, [appellants] placed an order with Bulldog [Chemicals] 

for Contone, a chemical used in drilling operations. Shortly thereafter, 

Bulldog [Chemicals] shipped the product to [appellants] and sent an 

invoice to [appellants] in the amount of $21.750.00 for payment. To 

date, [appellants] have failed to pay that invoice and $21,750.00 is still 

due and owing from [appellants].

[Appellants] were given notice of Bulldog[] [Chemicals’s] claim on 

many occasions. I emailed Mr. Polignone several times asking for

payment of Bulldog[] [Chemicals’s] invoice prior to the lawsuit being 

filed. Mr. Polignone replied to me on one occasion that he was going 

to return the Contone but he never did. To date, [appellants] are still in 

possession of the Contone sold by [Bulldog Chemicals].
8

[Appellants’] refusal to pay Bulldog[] [Chemicals’s] claim is without 

merit. [Appellants] purchased the product, Contone, from [Bulldog 

Chemicals] and [it] timely delivered the Contone pursuant to the 

purchase order. Mr. Polignone was a sophisticated buyer and had 

experience and knowledge of the Contone that [appellants] purchased 

from [Bulldog Chemicals]. [Bulldog Chemicals] answered 

[appellants’] general and specific questions about the use of Contone in 

oil and gas well drilling applications. [Bulldog Chemicals] did not 

make any express or implied warranties about the performance of 

Contone. There were no conditions as to the performance of Contone 

on the sale of the product.

And an invoice, also contained in the record, from Bulldog Chemicals states that 

“[p]er [a]greement [with] Donato [Polignone],” Bulldog Chemicals supplied 300 

“50lb bags” of Contone at a price of $72.50 each, for a total of $21,750. The invoice 

also notes that it is “[p]ast [d]ue.”

Here, Bulldog Chemicals has alleged that it had an agreement with appellants, 

Bulldog Chemicals performed under the parties’ agreement, appellants breached that 

agreement, and Bulldog Chemicals sustained damages as a result of appellants’ 

breach. See Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848–49 (Tex. 

2005) (party has standing “when it is personally aggrieved” (internal quotations 

omitted)); Nootsie, 925 S.W.2d at 661; see also Billy B., Inc., 717 S.W.2d at 158. 

And appellants do not dispute that there was an agreement with Bulldog Chemicals 

to purchase certain goods, namely, Contone, Bulldog Chemicals supplied Contone 

pursuant to that agreement, and Bulldog Chemicals did not receive “pay[ment] for 

the[] goods.” 
9

Instead, appellants argue that Bulldog Chemicals should not have sued them 

in their individual capacities because Bulldog Chemicals’s agreement for the 

purchase of the goods was between it and NuGenTec and appellants never interacted 

with Bulldog Chemicals in their individual capacities, only as agents of NuGenTec. 

Any assertion that appellants are not liable to Bulldog Chemicals pursuant to the 

agreement at issue in this case implicates the merits of the case and does not affect 

Bulldog Chemicals’s standing to bring suit against appellants or the trial court’s 

jurisdiction.6 See Wells Fargo Bank, N.A. v. Ballestas, 355 S.W.3d 187, 192 (Tex. 

App.—Houston [1st Dist.] 2011, no pet.); Yasuda Fire & Marine Ins. Co. of Am. v. 

Criaco, 225 S.W.3d 894, 898 (Tex. App.—Houston [14th Dist.] 2007, no pet.); see 

 

6 Although framed in the context of a “standing issue,” appellants appear to raise a 

capacity complaint, i.e., they were not liable to Bulldog Chemicals in the capacity

in which they were sued. See John C. Flood of DC, Inc. v. SuperMedia, L.L.C., 408 

S.W.3d 645, 651–52 (Tex. App.—Dallas 2013, pet. denied) (noting confusion 

between standing and capacity issues and challenge to party’s privity of contract is 

challenge to capacity, not standing); Rhey v. Redic, 408 S.W.3d 440, 456–57 (Tex. 

App.—El Paso 2013, no pet.) (whether plaintiffs could sue as individuals 

constituted capacity, not standing issue). Capacity is a distinct issue from standing 

and not a jurisdictional issue. See Douglas-Peters v. Cho, Choe & Holen, P.C., No. 

05-15-01538-CV, 2017 WL 836848, at *6–7, *9 (Tex. App.—Dallas Mar. 3, 2017, 

no pet.) (mem. op.); Schlein v. Griffin, No. 01-14-00799-CV, 2016 WL 1456193, at 

*5 (Tex. App.—Houston [1st Dist.] Apr. 12, 2016, pet. denied) (mem. op.). And 

the defense of capacity must first be raised by a verified pleading in the trial court 

pursuant to Texas Rule of Civil Procedure 93, otherwise it is waived on appeal. See

TEX. R. CIV. P. 93(1)–(2); see also Nootsie, Ltd. v. Williamson Cty. Appraisal Dist., 

925 S.W.2d 659, 662 (Tex. 1996); Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 

492, 494 (Tex. 1991); Brown v. Mesa Distribs., Inc., 414 S.W.3d 279, 285 (Tex. 

App.—Houston [1st Dist.] 2013, no pet.). Here, appellants did not raise any 

capacity complaint in a verified pleading in the trial court.
10

also Fitness Evolution, L.P. v. Headhunter Fitness, L.L.C., No. 05-13-00506-CV, 

2015 WL 6750047, at *13–14 (Tex. App.—Dallas Nov. 4, 2015, no pet.) (mem. op.)

(discussing standing versus capacity); Intracare Hosp. N. v. Campbell, 222 S.W.3d 

790, 795 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (lack of capacity does not 

deprive trial court of subject-matter jurisdiction).

Accordingly, we hold that Bulldog Chemicals has sufficiently alleged facts 

and presented evidence demonstrating its standing to bring the instant suit against 

appellants.

We overrule appellants’ second issue.

Motion for New Trial

In their first issue, appellants argue that the trial court erred in not granting 

their motion for new trial because they did not file an answer due to a “mistake[],” 

they “have a meritorious defense,” and granting the motion for new trial “would not 

result in delay or prejudice” to Bulldog Chemicals.

We review the trial court’s denial of a motion for new trial for an abuse of 

discretion. See Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009); 

In re R.R., 209 S.W.3d 112, 114 (Tex. 2006). In other words, the court’s ruling on 

a motion for new trial will not be disturbed on appeal absent a showing of an abuse 

of discretion. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984). A trial court 

abuses its discretion if its decision is arbitrary, unreasonable, and without reference 
11

to guiding rules and principles. See Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.

1997); Imkie v. Methodist Hosp., 326 S.W.3d 339, 344 (Tex. App.—Houston [1st 

Dist.] 2010, no pet.). When as here, no findings of fact and conclusions of law are 

filed, the denial of a motion for new trial must be upheld on any legal theory 

supported by the evidence. See Strackbein, 671 S.W.2d at 38.

In Craddock, the Texas Supreme Court set forth three requirements that a 

defaulting party must satisfy to set aside a default judgment and obtain a new trial: 

(1) the defaulting party’s failure to file an answer before judgment was not 

intentional or the result of conscious indifference, but was a mistake or accident; 

(2) the defaulting party has a meritorious defense; and (3) a new trial will not result 

in delay or prejudice to the non-defaulting party. 133 S.W.2d at 126.

To successfully challenge a default judgment, the defaulting party must 

allege, and support with sworn proof, the three Craddock requirements. Ivy v. 

Carrell, 407 S.W.2d 212, 214 (Tex. 1966) (noting party challenging dismissal bears 

burden of establishing entitlement to relief); Wal-Mart Stores, Inc. v. Kelley, 103 

S.W.3d 642, 644 (Tex. App.—Fort Worth 2003, no pet.); Pickell v. Guar. Nat’l Life 

Ins. Co., 917 S.W.2d 439, 443 (Tex. App.—Houston [14th Dist.] 1996, no writ). 

Thus, to prevail on a motion for new trial under Craddock, the defaulting party must 

(1) allege facts and attach affidavits to a verified motion to set aside the default 

judgment or motion for new trial that would meet the three Craddock requirements 
12

or (2) present evidence at the hearing on its motion that meets those requirements.7

See Pickell, 917 S.W.2d at 443. A trial court abuses its discretion in denying a new 

trial when the requirements of the Craddock test are satisfied. Dolgencorp, 288 

S.W.3d at 926; Bank One, Tex., N.A. v. Moody, 830 S.W.2d 81, 85 (Tex. 1992);

Pickell, 917 S.W.2d at 443.

In order to determine whether the trial court erred in not setting aside the 

default judgment against appellants, we first consider whether their failure to answer 

was not intentional or the result of conscious indifference, but due to a mistake or an 

accident. “Conscious indifference” requires more than just mere negligence; rather, 

it means a “failure to take some action that would seem indicated to a person of 

reasonable sensibilities under the same circumstances.” Smith v. Babcock & Wilcox 

Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995); Mahand v. Delaney, 60 S.W.3d 371, 

374 (Tex. App.—Houston [1st Dist.] 2001, no pet.); Sharpe v. Kilcoyne, 962 S.W.2d 

697, 701 (Tex. App.—Fort Worth 1998, no pet.); see also Milestone Operating, Inc. 

v. ExxonMobil Corp., 388 S.W.3d 307, 310 (Tex. 2012) (“Consciously indifferent 

conduct occurs when the defendant knew it was sued but did not care.” (internal 

quotations omitted)). Appellants must offer some excuse for their failure to answer, 

which need not necessarily be a good excuse. See Sutherland v. Spencer, 376 

 

7

In this case, there is no reporter’s record from the trial court’s hearing on appellants’ 

motion for new trial.
13

S.W.3d 752, 755 (Tex. 2012); Mahand, 60 S.W.3d at 374 (“Even a slight excuse 

may justify a new trial.”); State v. Sledge, 982 S.W.2d 911, 914 (Tex. App.—

Houston [14th Dist.] 1998, no pet.).

Uncontroverted factual allegations in a defaulting party’s motion for new trial 

and accompanying affidavits, if true, can negate intent or conscious indifference. 

Todd v. Heinrich, No. 01-10-00267-CV, 2011 WL 2183881, at *6 (Tex. App.—

Houston [1st Dist.] June 2, 2011, no pet.) (mem. op.); Jackson v. Mares, 802 S.W.2d 

48, 50 (Tex. App.—Corpus Christi 1990, writ denied); see also Milestone Operating, 

388 S.W.3d at 309. However, if the non-defaulting party presents controverting 

evidence showing conscious indifference, the issue becomes a fact question for the 

trial court. Todd, 2011 WL 2183881, at *6; Jackson, 802 S.W.2d at 50. “The [trial]

court, as fact-finder at a hearing on a motion for new trial, has the duty of 

ascertaining the true facts . . . and it is within the [trial] court’s province to judge the 

credibility of the witnesses and to determine the weight to be given their testimony.” 

Jackson, 802 S.W.2d at 51; see also Todd, 2011 WL 2183881, at *6. In determining 

whether the failure to answer was due to intentional disregard or conscious 

indifference, the court may look at all of the evidence in the record. Dir., State Emps.

Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 269 (Tex. 1994); see also Holt 

Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 82 (Tex. 1992); see also Moya v. 

Lozano, 921 S.W.2d 296, 299 (Tex. App.—Corpus Christi 1996, no writ) (holding 
14

court reviews all evidence in record to determine whether allegations are 

controverted).

Here, appellants attached to their motion for new trial their two affidavits. In 

his affidavit, Polignone testified:

Although I failed to properly answer the lawsuit in question, my failure 

was simply an oversight and not a matter of my conscious disregard for 

the seriousness of th[e] matter. Additionally, I never interacted with 

[Bulldog Chemicals] in my individual capacity. I only ever conducted 

business under the name Nu[G]entec . . . , a company registered under 

the laws of the state of Delaware.

In his affidavit, Roy similarly testified:

Although I failed to properly answer the lawsuit in question, my failure 

was simply an oversight and not a matter of my conscious disregard for 

the seriousness of th[e] matter. Additionally, I never interacted with

[Bulldog Chemicals] in my individual capacity. I only ever conducted 

business under the name Nu[G]entec . . . , a company registered under 

the laws of the state of Delaware.

Notably, appellants, in their affidavits, did not deny knowledge of Bulldog 

Chemicals’s suit against them. And the record evidence shows that appellants 

received a demand letter from Bulldog Chemicals informing them that they owed 

Bulldog Chemicals $21,750 and if payment was not received “immediately,” then 

Bulldog Chemicals would file suit. Further, after Bulldog Chemicals filed suit, 

Polignone was personally served with citation and a copy of the original petition on 

February 3, 2016, and Roy was personally served with citation and a copy of the 

original petition on March 2, 2016. And on April 28, 2016, appellants were served 
15

by certified mail, return receipt requested, with Bulldog Chemicals’s motion for 

default judgment and notice of the motion’s May 9, 2016 submission date. Bulldog 

Chemicals’s certified mail receipts are contained in the record and the “green cards”

are signed by appellants, showing that they received the motion for default judgment 

and notice of the submission date. (Internal quotations omitted.)

When the defaulting party knows that it is being sued and the opposing party 

is actively pursuing its claim against it and in response does nothing, the defaulting 

party acts with conscious indifference. See Sharpe, 962 S.W.2d at 701; Prince v. 

Prince, 912 S.W.2d 367, 369–70 (Tex. App.—Houston [14th Dist.] 1995, no writ); 

Johnson v. Edmonds, 712 S.W.2d 651, 652–53 (Tex. App.—Fort Worth 1986, no 

writ); see also In re R.R., 209 S.W.3d at 115 (receiving citation and doing nothing 

following service “does not constitute a mistake . . . sufficient to meet the Craddock

requirements”); Fiske v. Fiske, No. 01-03-00048-CV, 2004 WL 1847368, at *7–8 

(Tex. App.—Houston [1st Dist.] Aug. 19, 2004, no pet.) (mem. op.) (where 

defendant had actual knowledge of possible default judgment and did nothing, he 

did not establish failure to answer not result of conscious indifference); cf. Milestone 

Operating, 388 S.W.3d at 310.

Further, although appellants in their affidavit testified that their failure to 

“properly answer [Bulldog Chemicals’s] lawsuit” was due to “oversight and not a 

matter of [their] conscious disregard for the seriousness of th[e] matter,” they do not 
16

provide any explanation as to why they did not take any action after receiving notice 

of the filing of Bulldog Chemicals’s suit and its subsequently filed motion for default 

judgment. See Fid. & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 575

(Tex. 2006) (conclusory statement must be supported by some explanation);

Interconex, Inc. v. Ugarov, 224 S.W.3d 523, 538 (Tex. App.—Houston [1st Dist.] 

2007, no pet.) (same); Freeman v. Pevehouse, 79 S.W.3d 637, 645–46 (Tex. App.—

Waco 2002, no pet.) (defendant must explain under oath what mistake or accident 

caused failure to timely file answer); see also Holt Atherton Indus., 835 S.W.2d at

82–83. And appellants’ conclusory statements in their affidavits that their failure to 

answer was not the result of their “conscious disregard for the seriousness of th[e] 

matter” are not sufficient to satisfy the first requirement of Craddock. See Holt 

Atherton Indus., 835 S.W.2d at 82–83 (conclusory allegations insufficient to 

establish Craddock requirements); Sheraton Homes, Inc. v. Shipley, 137 S.W.3d 

379, 382 (Tex. App.—Dallas 2004, no pet.); Freeman, 79 S.W.3d at 645–46; Folsom 

Invs., Inc. v. Troutz, 632 S.W.2d 872, 875 (Tex. App.—Fort Worth 1982, writ ref’d 

n.r.e.) (“Conclusory allegations of no intent or conscious indifference do not 

suffice . . . .”); see also Interconex, 224 S.W.3d at 532 n.2 (conclusory means 

“[e]xpressing a factual inference without stating the underlying facts on which the 

inference is based” (internal quotations omitted)).
17

Finally, we note that appellants, in their unverified motion for new trial, did 

also assert that they are “residents of the State of California,” are “unfamiliar with 

procedure in the State of Texas,” “sought counsel from attorneys licensed out of the 

state,” the “out of state” attorneys that appellants conferred with “were . . . unaware 

of the limitations placed on [appellants] in Texas [c]ourt[s],” and, although they

“intended to seek local counsel,” they “did [not do] so prior to the signing of the 

default judgment on May 11, 2016.”8 Notably, though, unverified factual allegations 

in a defaulting party’s motion for new trial cannot be used to establish that his failure 

to file an answer was not intentional or the result of conscious indifference.

9

 See 

Wiseman v. Levinthal, 821 S.W.2d 439, 442 (Tex. App.—Houston [1st Dist.] 1991, 

no writ) (holding defaulting party’s allegation in motion for new trial “that his failure 

to answer was not due to conscious indifference” not verified or supported by 

affidavit and, thus, did not constitute competent evidence); see also Ivy, 407 S.W.2d 

at 214; Chamberlain v. Chamberlain, No. 12-09-00187-CV, 2011 WL 2135128, at 

*3 (Tex. App.—Tyler May 31, 2011, no pet.) (mem. op.) (allegation neither verified 

nor supported by affidavit not competent evidence or proof conduct not intentional 

or result of conscious indifference); Suarez v. Suarez, No. 13-04-108-CV, 2006 WL 

 

8 Appellants further assert that their “failure . . . to answer was purely a mistake of 

[p]ro se, out of state residents, and not conscious indifference.”

9 We note that the factual allegations in appellants’ motion for new trial are not 

supported by the affidavits that appellants did file in connection with their motion.
18

1194960, at *1 (Tex. App.—Corpus Christi May 4, 2006, no pet.) (mem. op.) 

(allegations in motion for new trial regarding failure to appear not verified or 

supported by affidavit or other evidence); cf. Mathis v. Lockwood, 166 S.W.3d 743,

744–46 (Tex. 2005) (holding evidence sufficient to establish first Craddock element 

where defaulting party’s sworn motion for new trial asserted failure to appear at trial 

due to not receiving notice of setting).

After reviewing the evidence of appellants’ acts and knowledge found in the 

record, we conclude that the trial court could have reasonably found that appellants 

“knew [they] w[ere] [being] sued but did not care.” See Milestone Operating, 388 

S.W.3d at 310 (internal quotations omitted); see also Evans, 889 S.W.2d at 269 

(courts look to knowledge and acts of defaulting party to determine whether failure 

to answer intentional or due to conscious indifference). In other words, the trial 

court could have determined that appellants acted with conscious indifference to the

proceedings when they failed to answer Bulldog Chemicals’s suit, and as a result, 

they did not satisfy the first Craddock requirement. See Craddock, 133 S.W.2d at 

126.

Accordingly, we hold that the trial court did not err in denying appellants’

motion for new trial.

We overrule appellants’ first issue.
19

Frivolous Appeal

In its brief, Bulldog Chemicals contends that appellants’ appeal is frivolous 

and asks this Court to “sanction[]” appellants. See TEX. R. APP. P. 45 (damages for 

frivolous appeals in civil cases).

After considering the record, briefs, and other papers filed in this Court, we 

may award a prevailing party “just damages” if we objectively determine that an 

appeal is frivolous. Id.; see also Smith v. Brown, 51 S.W.3d 376, 380–81 (Tex. 

App.—Houston [1st Dist.] 2001, pet. denied). An appeal is frivolous when the 

record, viewed from the perspective of the advocate, does not provide reasonable 

grounds for the advocate to believe that its case could be reversed. Smith, 51 S.W.3d 

at 381. The decision to grant appellate sanctions is a matter of discretion that an 

appellate court exercises with prudence and caution and only after careful 

deliberation. Id. And rule 45 does not require the Court to award just damages in 

every case in which an appeal is frivolous. Woods v. Kenner, 501 S.W.3d 185, 198 

(Tex. App.—Houston [1st Dist.] 2016, no pet.); Glassman v. Goodfriend, 347 

S.W.3d 772, 782 (Tex. App.—Houston [14th Dist.] 2011, pet. denied).

After a review of the record, briefing, and other papers filed in this Court, we 

deny Bulldog Chemicals’s request for sanctions against appellants.
20

Conclusion

We affirm the judgment of the trial court and deny Bulldog Chemicals’s

request for sanctions under Texas Rule of Appellate Procedure 45.

Terry Jennings

Justice

Panel consists of Justices Jennings, Massengale, and Caughey.