Binh Nguyen v. Jeana Tran and Truc Le, Individually and on Behalf of Wilcrest Park Townhomes Owners" Association, Inc., Wilcrest Park Townhomes Owners' Association, Inc., and Miklos Kato

Opinion issued February 19, 2026.

In the

Court of Appeals
for the

First District of Texas
————————————
NO. 01-24-00089-CV
———————————
BINH NGUYEN, Appellant
v.
JEANA TRAN AND TRUC LE, INDIVIDUALLY AND ON BEHALF OF
WILCREST PARK TOWNHOMES OWNERS’ ASSOCIATION, INC., AND
WILCREST PARK TOWNHOMES OWNERS’ ASSOCIATION, INC.,
Appellees

On Appeal from the 295th District Court
Harris County, Texas
Trial Court Case No. 2020-56338

MEMORANDUM OPINION

Appellant, Binh Nguyen, challenges the trial court’s final judgment in favor

of appellees Jeana Tran and Truc Le, individually and on behalf of the Wilcrest

Park Townhomes Owners’ Association, Inc. (the HOA), and the HOA in cause
number 2020-56338, and in favor of the HOA in cause number 2019-73573, which

was consolidated into cause number 2020-56338.1 We reverse and remand to the

trial court for a determination of its subject-matter jurisdiction.

Background

Wilcrest Park Townhomes is a residential condominium complex in the

Houston suburbs.

A. The 2019 Lawsuits

On October 7, 2019, in Binh Nguyen v. Miklos Kato, et al., Harris County

District Court cause number 2019-73573, Nguyen filed suit against the HOA, a

nonprofit corporation, certain of the HOA’s past or then-current directors (Miklos

Kato, Minh Hoang, and Tu Dung), and Austenite Investments, LLC (Austenite).

Nguyen brought his claims and sought declaratory relief based on the defendants’

alleged refusal to recognize Nguyen’s election to the HOA board. The HOA and

director defendants filed an answer that included a jury demand. The HOA filed

counterclaims and sought injunctive relief against Nguyen, including an injunction

barring him from asserting any authority to act on behalf of the HOA.

1
We have modified the style of the appeal to correct the spelling of Wilcrest Park
Townhomes Owners’ Association, Inc. We have removed from the list of
appellees what appeared to be a duplicative reference to the HOA, and we have
also removed from that list the names of three individuals (Miklos Kato, Minh
Hoang, and Dung Tu ) who were dismissed from the underlying litigation.

2
On December 3, 2019, in Wilcrest Park Townhomes Owners’ Association v.

Binh Nguyen, Harris County District Court cause number 2019-85910, the HOA

filed suit against Nguyen based on conduct that the HOA alleged had occurred

since Nguyen filed suit against the HOA. The HOA asked the trial court in

Nguyen’s lawsuit to consolidate that lawsuit and the HOA’s lawsuit. The trial court

granted the motion and consolidated the cases under cause number 2019-73573.

Soon thereafter, Nguyen non-suited with prejudice his claims against the

HOA and the HOA non-suited with prejudice its claims against Nguyen. The

surviving claims were Nguyen’s claims against the director defendants and

Austenite. Nguyen amended his petition to add the HOA as a plaintiff. The HOA

successfully moved for a default judgment against Austenite, which had never filed

an answer.

The trial court later severed the HOA’s claims against Austenite into cause

number 2019-73573-A, making the default judgment a final judgment in the

severed action. Still pending in cause number 2019-73573 were Nguyen and the

HOA’s claims against the director defendants.

B. The HOA’s September 2020 Lawsuit

In September 2020, in Wilcrest Park Townhomes Owners’ Association v.

Jeana Tran, et al., Harris County District Court cause number 2020-56338, the

HOA sued homeowners and former HOA directors Jeana Tran (J. Tran) and Truc

3
Le. The HOA brought various claims and sought injunctive relief against J. Tran

and Le. J. Tran filed counterclaims and sought declaratory relief against the HOA.

Khoi Tran (K. Tran), the owner of multiple Wilcrest Park Townhomes units,

intervened in the litigation and asserted the same claims against the HOA as

J. Tran.

On May 3, 2022, J. Tran and K. Tran filed a joint jury demand and paid the

required jury fee. On January 20, 2023, J. Tran and Le filed a joint jury demand

and paid the required jury fee.

On April 7, 2023, defendant/counter-plaintiff J. Tran and defendant Le filed

third-party claims and sought declaratory relief against Nguyen. J. Tran and Le

complained of injuries suffered by the HOA as a result of Nguyen’s conduct, as

well as injuries suffered by J. Tran and Le individually.

On October 23, 2023, roughly two weeks before trial, J. Tran and Le filed a

jury trial waiver.

C. Trial in HOA’s September 2020 Lawsuit

1. Bench trial

The trial court held a bench trial on November 6-8, 2023.2 Nguyen appeared

pro se at trial. During a housekeeping discussion on the first day of trial, just before

2
While the reporter’s record states the trial dates as November 7-9, 2023, the trial
court states in its final judgment that the trial dates were November 6-8, 2023. We
use herein the trial dates as stated by the trial court.

4
the trial began, the trial court asked: “All parties have agreed to waive the jury fees

that have been previously paid; is that correct?” Counsel for the HOA and counsel

for J. Tran, Le, and K. Tran both responded: “Yes.” Nguyen then had the following

exchange with the trial court:

MR. NGUYEN: Your Honor, I don’t have a voice into all of this. So
how do I get a fair trial when I don’t have a voice, ma’am, on –

THE COURT: You –

MR. NGUYEN: – agreement of the jury, on agreement of the hearing
on – on agreement of the mediation. I don’t have a voice. I have to do
– to disagree.

THE COURT: Okay. Well, you have a voice here. You will sit at
counsel’s table right there in that end chair and we are proceeding.

You – Counsel –

MR. NGUYEN: Your Honor, for record, I do not agree with the trial
without juries, ma’am.

THE COURT: Did you pay a jury fee? Did you demand a jury, did
you pay a jury fee?

MR. NGUYEN: I don’t know the process, ma’am.

THE COURT: That’s – you fired your lawyer. So that’s at your own
fault. You can sit right there.

I specifically asked you if you wanted, to make sure you were doing
the right thing, without going forward with a lawyer.

MR. NGUYEN: Your Honor, I believe that when you asked me – or
both party on the hearing, that I was not properly served, and they
confirmed that I was not a party –

5
THE COURT: Okay.

MR. NGUYEN: – at the hearing. So to my point of view, I – I don’t
need a lawyer. And I’m not a party.

According to the last hearing that you had a hearing for the show
cause, both [the court-appointed receiver and counsel for J. Tran, Le,
and K. Tran] confirmed that I’m not a party.

THE COURT: Okay. Why don’t you have a seat.

After confirming that no one in the courtroom was there for a hearing on another

matter, the trial court had the following exchange with counsel for J. Tran, Le, and

K. Tran:

THE COURT: [Counsel for J. Tran, Le, and K. Tran], you filed a
third-party petition; is that correct?

[COUNSEL FOR J. TRAN, LE, AND K. TRAN]: Yes, ma’am.

THE COURT: Okay. And was Mr. Nguyen served with the third-
party petition.

[COUNSEL FOR J. TRAN, LE, AND K. TRAN]: Your Honor, no.
We were not able to get him served. His attorney . . . made an
appearance on his behalf.

THE COURT: Okay. Is there an answer on file?

[COUNSEL FOR J. TRAN, LE, AND K. TRAN]: No, ma’am. There
is no answer on file.

THE COURT: So tell me about the appearance he made on his behalf.

[COUNSEL FOR J. TRAN, LE, AND K. TRAN]: When he appeared
in the court, and he also filed that he was his attorney of record. And
then, he had to file a motion to withdraw as the attorney of record.

6
THE COURT: Okay. Great. Thank you. . . .

Later that day, the HOA filed a jury waiver. K. Tran did not file a written jury

waiver.

2. Alleged settlement and assignment

During the same pretrial discussion, the trial court and parties had the

following exchange concerning an alleged settlement between the HOA and

J. Tran, Le, and K. Tran:

THE COURT: All right. [Counsel for HOA], anything else?

[COUNSEL FOR HOA]: Yes, Your Honor. At this time Plaintiffs
[sic] [the HOA] announces a settlement with Jeana Tran, Truc Le, and
Khoi Tran.

THE COURT: So Defendant [sic] [the HOA] has settled with the
three plaintiffs [sic].

[COUNSEL FOR HOA]: Yes.

THE COURT: Is that correct?

[COUNSEL FOR J. TRAN, LE, AND K. TRAN]: Yes, ma’am.

THE COURT: Okay. Do you want to dictate the terms of the
settlement into the court record so the Court can render.

[COUNSEL FOR HOA]: Do you want to do that, or do you want to
hold on the details?

[COUNSEL FOR J. TRAN, LE, AND K. TRAN]: We can hold on the
details, Your Honor, and – and put it in writing and –

THE COURT: Okay.

7
[COUNSEL FOR J. TRAN, LE, AND K. TRAN]: – that’s what we
would prefer to do.

THE COURT: Before you leave today you need to do that so that we
can make it part of the record and that there is no issue about what
that settlement is.

The Court wants to render so there’s no changes after I render, is that
understood?

[COUNSEL FOR J. TRAN, LE, AND K. TRAN]: Yes, ma’am.

THE COURT: So that leaves what for trial?

[COUNSEL FOR HOA]: That leaves the case against Mr. Nguyen.

THE COURT: Is [the HOA] a party to that case?

[COUNSEL FOR HOA]: It is now.

THE COURT: How is it a party to this case now?

[COUNSEL FOR HOA]: Ms. Tran, Ms. Le, [and] Mr. Tran have
assigned their claims against Mr. Nguyen to [the HOA][3] and retain
their claims for attorney’s fees.

THE COURT: Okay. So you only are here for purposes of proving up
your attorney’s fees?

[COUNSEL FOR J. TRAN, LE, AND K. TRAN]: Yes, ma’am. But
my clients will be testifying, so I will be here while they also testify,
Your Honor.

THE COURT: Is it your position that you will be able to object during
those testimonies?

3
Despite this statement, intervenor K. Tran does not appear to have had any
pending claims against Nguyen.

8
[COUNSEL FOR J. TRAN, LE, AND K. TRAN]: With regard to my
clients?

THE COURT: Yes.

[COUNSEL FOR J. TRAN, LE, AND K. TRAN]: Yes, because I’m
still here with regard to the claim for attorney’s fees.

THE COURT: But if you have -- well, you can, of course, object to
any question with regard to attorney’s fees.

But if you have assigned your interest to [the HOA], then it is [the
HOA] who, then, has the right to question and object.

[COUNSEL FOR J. TRAN, LE, AND K. TRAN]: Yes, ma’am.

THE COURT: All right. I think I got.

Are we ready? Anything else?

[COUNSEL FOR HOA]: That’s all from the plaintiffs.

THE COURT: Okay. So you, [counsel for HOA], are now going to
give me an opening statement on the claim of the Trans and Le
against Mr. Nguyen; is that correct?

[COUNSEL FOR HOA]: Yes, Your Honor.

THE COURT: All right. You may proceed.

After closing arguments on November 8, 2023, the last day of trial, the trial

court discussed with the parties whether the pending claims permitted the trial

court to award the HOA damages based on harm the HOA suffered as a result of

Nguyen’s conduct. As part of that discussion, the trial court confirmed that the

HOA did not bring its own damages claim against Nguyen and that J. Tran and

9
Le’s third-party claims against Nguyen were claims brought in their individual

capacity and not derivative claims brought on behalf of the HOA:

THE COURT: I want you to help me with a procedural issue, [counsel
for HOA and counsel for J. Tran, Le, and K. Tran]. Who were
assigned the claim of the individual Plaintiffs? Did [the HOA] file a
counterclaim against Mr. Nguyen?

[COUNSEL FOR HOA]: No. They did not, we did not.

THE COURT: So does [the HOA] have a cause of action against
Mr. Nguyen?

[COUNSEL FOR HOA]: Not in this case, your Honor.

THE COURT: So tell me how I award [the HOA] damages, okay,
against Mr. Nguyen?

[COUNSEL FOR HOA]: These would not be [HOA] damages. [The
HOA] damages and claim has been resolved against Jeana Tran.
These are Jeana Tran, True Le, and Khoi Tran’s damages.

THE COURT: Except that they filed in their individual capacity and
not in their derivative capacity on behalf of [the HOA].

[COUNSEL FOR HOA]: That is correct, your Honor.

THE COURT: So how do I award [the HOA] damages and/or
damages to the individuals if the damages belong to [the HOA]?

[COUNSEL FOR HOA]: They have experienced their own damages
on an individual basis.

THE COURT: Correct.

[COUNSEL FOR HOA]: And that is part of what we moved for in
addition.

10
THE COURT: So for instance, how do I award $315,000 in damages
if the harmed party is [the HOA]?

[COUNSEL FOR HOA]: The harmed party is also the owners. They
are owners of the units.

THE COURT: So wouldn’t they be entitled to just their percentage of
what they own in the unit? The damage to the wounded party here is
[the HOA]. They did not file derivatively.

[COUNSEL FOR HOA]: That’s correct, your Honor.

THE COURT: Tell me how I award [the HOA] damages?

[COUNSEL FOR HOA]: You cannot award [the HOA] damages,
your Honor.

THE COURT: How do I award the damages that were sustained by
[the HOA] to these individual Defendants?

[COUNSEL FOR HOA]: They would have to be awarded, as your
Honor stated, in their individual capacity; but as owners, they are on
the hook for all of these damages, the damages that are ongoing at [the
HOA] because of the actions of Binh Nguyen.

....

THE COURT: But tell me -- I need a brief because quite frankly, I
don’t think you have the proper party in this case. So you-all are going
to have to figure out that there are these damages up here, okay. There
appears to be an injured party. That injured party appears to be [the
HOA].

[COUNSEL FOR HOA]: Yes, your Honor.

After counsel for the HOA and counsel for J. Tran, Le, and K. Tran discussed

filing motions for leave to amend their pleadings to conform to the evidence

presented at trial, the trial court concluded:
11
I look forward to your briefing and your motion for leave. I could be
wrong. Somehow or another this could be different, but the damages
you-all have proved are against [the HOA]. They can in their
derivative capacity sue on behalf of [the HOA], but I don’t see where
they’ve done that.

D. Post-Trial Amendments in HOA’s September 2020 Lawsuit

On November 13, 2023, J. Tran and Le filed a motion for leave to amend

their third-party petition under rule 67 of the Texas Rules of Civil Procedure.

J. Tran and Le concurrently filed an amended third-party petition in which they

recast their non-derivative claims based on harm suffered by the HOA as a result

of Nguyen’s conduct and pled them as derivative claims based on harm suffered by

the HOA as a result of Nguyen’s ultra vires conduct. In their motion for leave,

J. Tran and Le argued that “[t]he . . . causes of action that [the HOA] has against []

Nguyen were tried by consent,” without objection by Nguyen, and should thus be

treated as if they had been pled by the HOA.

Also on November 13, 2023, the HOA filed its own motion under rule 67 of

the Texas Rules of Civil Procedure for leave to file an amended pleading, along

with the proposed amended pleading. The HOA attached a copy of J. Tran and

Le’s amended third-party petition to its amended pleading and stated that the HOA

“adopts any and all claims, causes of actions, and allegations against [] Nguyen

and incorporates [sic] herein.” Separately, the HOA amended its petition to provide

that “[a]ll facts, allegations, and causes of action claimed against [J. Tran and

12
Le]”—i.e., allegations and claims that the HOA had originally brought against

J. Tran and Le—“are also claimed by [the HOA] against [] Nguyen due to the

assignment of claims.”4 (Emphasis added.) The HOA argued that “[a]ll issues

have been tried by consent” and that the pleadings “should be conformed to match

the evidence presented at trial.”

On November 14, 2026, the trial court held a post-trial hearing at which it

considered the motions for leave to amend. Over Nguyen’s objections, the trial

court granted the parties’ motions “to [a]mend their respective pleadings to reflect

causes of action tried against [] Nguyen by consent.”

E. Consolidation of the 2019 Lawsuits into the HOA’s 2020 Lawsuit

Nguyen’s and the HOA’s 2019 lawsuits, which had been consolidated under

cause number 2019-73573, were transferred in April 2023 to the court in which the

HOA’s 2020 lawsuit was pending. The day that those cases were scheduled for

trial, the trial court granted Nguyen’s motion to non-suit all of his claims. The trial

court also dismissed any still-pending claims by any parties other than Nguyen and

the HOA, which were the only parties who appeared at trial. The trial court then

granted a motion by the HOA to consolidate cause number 2019-73573 into cause

4
Despite the HOA’s representations to the trial court that the HOA, J. Tran, Le, and
K. Tran had entered into a settlement that left for trial only claims against Nguyen,
the HOA in its amended pleading removed only one of several claims against
J. Tran and Le.

13
number 2020-56338 “as a matter of judicial economy in order to avoid trying the

exact same case against [Nguyen] which was tried in” cause number 2020-56338.5

F. Trial Court Judgment

In its November 14, 2023 judgment in the consolidated actions, including

causes number 2019-73573 and 2020-56338, the trial court concluded that the

HOA, J. Tran, and Le were entitled to an award of damages, attorney’s fees, and a

permanent injunction against Nguyen. The trial court found Nguyen to be liable to

the HOA for breach of fiduciary duty, negligent misrepresentation, fraud, gross

negligence, and willful misconduct,6 and awarded the HOA $640,653.03 in actual

damages and $250,000.00 in exemplary damages. The trial court entered a

permanent injunction against Nguyen to avoid any further harm to the HOA. The

trial court awarded J. Tran $10,100.00 in actual damages against Nguyen. The trial

court found Nguyen to be liable to J. Tran and Le for attorney’s fees under both

their individual and derivative claims and awarded J. Tran and Le $282,070.60 in

attorney’s fees in their derivative capacity. The trial court also awarded J. Tran and

Le additional amounts of attorney’s fees in their derivative capacity in the event

5
It is unclear from the record on appeal what claims were pending against which
parties in cause number 2019-73573 at the time of the consolidation.
6
J. Tran and Le had pleaded these claims in their third-party petition, first on a
non-derivative and then on a derivative basis. The HOA incorporated the
derivative claims by reference into its amended petition. In addition, the HOA’s
original petition included a breach of fiduciary duty claim against J. Tran and Le
and, in its amended petition, the HOA extended the scope of that claim to include
Nguyen “due to the assignment of claims.”

14
any appeal by Nguyen from the trial court’s order reached certain appellate

milestones.

Nguyen later filed a motion for new trial on the grounds that he had been

improperly denied a jury trial. The HOA, J. Tran, Le, and K. Tran argued in

response that Nguyen waited too late to object to proceeding without a jury. In his

reply in support of his motion, Nguyen noted that he had objected to proceeding

without a jury before the HOA filed its jury waiver. The trial court denied

Nguyen’s motion for new trial.

G. Appeal

On appeal, Nguyen argues with respect to cause number 2020-56338 that

(1) no party in the lawsuit had standing to assert claims for damages sustained by

the HOA, and (2) the trial court abused its discretion in denying Nguyen a jury

trial.7 Because standing is a necessary component of subject-matter jurisdiction, we

address that issue first. See Gilbreath v. Horan, 682 S.W.3d 454, 487-90 (Tex.

App.—Houston [1st Dist.] 2023, pet. denied) (addressing standing challenges first

given potential impact on subject-matter jurisdiction).

Standing

In his first issue on appeal, Nguyen argues there was no basis for the trial

court’s awards of damages and injunctive relief against him in cause number 2020-

7
Nguyen appeared pro se at trial but is represented by counsel on appeal.

15
56338 for harm suffered by the HOA because (1) J. Tran, Le, and K. Tran did not

have standing to bring the underlying claims; (2) the HOA did not have standing as

an assignee to bring the underlying claims; and (3) the parties’ post-trial

amendments did not cure those standing defects.

A. Standard of Review

Standing is a component of subject-matter jurisdiction. Meyers v.

JDC/Firethorne, Ltd., 548 S.W.3d 477, 484 (Tex. 2018). “A court has no

jurisdiction over a claim made by a plaintiff who lacks standing to assert it. Thus,

if a plaintiff lacks standing to assert one of his claims, the court lacks jurisdiction

over that claim and must dismiss it.” Heckman v. Williamson Cnty., 369 S.W.3d

137, 150 (Tex. 2012). 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 (Tex. 2004). Standing is determined at the time suit

is filed in the trial court. Boeing Co. v. Sw. Airlines Pilots Ass’n, 716 S.W.3d 140,

148 n.12 (Tex. 2025).

Because standing is a component of subject-matter jurisdiction, it cannot be

waived and may be raised for the first time on appeal by a party or the appellate

court. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445-46 (Tex.

1993); Country Cmty. Timberlake Vill., L.P. v. HMW Special Util. Dist., 438

S.W.3d 661, 667 (Tex. App.—Houston [1st Dist.] 2014, pet. denied). We must

16
engage in a sua sponte review of our jurisdiction whenever it is uncertain. See

Hensley v. State Comm’n on Judicial Conduct, 692 S.W.3d 184, 199 n.71 (Tex.

2024); Rattray v. City of Brownsville, 662 S.W.3d 860, 869 (Tex. 2023).

When standing is raised for the first time on appeal, the plaintiff may not

have had a fair opportunity to address it by amending its pleadings or developing

the record. RSL Funding, LLC v. Pippins, 499 S.W.3d 423, 429 (Tex. 2016) (citing

Rusk State Hosp. v. Black, 392 S.W.3d 88, 96 (Tex. 2012)). Under such

circumstances, the appellate court must construe the pleadings in favor of the

plaintiff and, if necessary, review the record for evidence supporting jurisdiction.

Id. (citing Rusk State Hosp., 392 S.W.3d at 96). “If standing has not been alleged

or shown, but the pleadings and record do not demonstrate an incurable

jurisdictional defect, the case will be remanded to the trial court where the plaintiff

is entitled to a fair opportunity to develop the record relating to jurisdiction and to

replead.” Id. (citing Rusk State Hosp., 392 S.W.3d at 96-97); see also Pepper

Lawson Horizon Int’l Grp., LLC v. Tex. S. Univ., 669 S.W.3d 205, 213 (Tex. 2023)

(assuming without holding that plaintiff’s standing was at issue, reversing and

remanding for further proceedings because defendant had not conclusively

established either that plaintiff had a full and fair opportunity to develop record in

trial court and amend its pleadings or that it would be unable to show its standing

given that opportunity (citing Rusk State Hosp., 392 S.W.3d at 100)).

17
B. Purported Settlement and Assignment

During a housekeeping discussion just before trial began, counsel for the

HOA and counsel for J. Tran, Le, and K. Tran informed the trial court of a

settlement between the HOA and J. Tran, Le, and K. Tran. Counsel declined to

dictate the terms of the settlement into the record, opting to “hold on the details”

and “put it in writing.” See Tex. R. Civ. P. 11 (“Agreements To Be in Writing”)

(“Unless otherwise provided in these rules, no agreement between attorneys or

parties touching any suit pending will be enforced unless it be in writing, signed

and filed with the papers as part of the record, or unless it be made in open court

and entered of record.”). The trial court informed them that they would need to do

so before they left the courtroom that day “so that we can make it part of the record

and that there is no issue about what that settlement is.” When the trial court then

asked what claims remained for trial, counsel for the HOA stated “the case against

Mr. Nguyen,” claiming that J. Tran, Le, and K. Tran had “assigned their claims

against Mr. Nguyen to [the HOA] and retain[ed] their claims for attorney’s fees.”

But the parties do not appear to have ever made the terms of the purported

settlement, including any assignment, a part of the record.

C. Non-Derivative Claims for Injuries Suffered by the HOA

Regardless of the purported settlement’s terms, no party in cause number

2020-56338 had standing to bring any non-derivative claim for injuries suffered by

18
the HOA that J. Tran and Le purportedly assigned to the HOA. Members of a

nonprofit corporation ordinarily have no individual cause of action for a wrong

done to the corporation, Tran v. Hoang, 481 S.W.3d 313, 316 (Tex. App.—

Houston [1st Dist.] 2015, pet. denied), and may bring a derivative claim only under

limited circumstances, see Grant Me the Wisdom Found. v. Boyar, 716 S.W.3d

916, 927 (Tex. App.—Houston [14th Dist.] 2025, pet. denied) (noting that Texas

Business Organizations Code, which governs derivative standing of shareholders

of for-profit and nonprofit corporations, does not give shareholders of nonprofit

corporations derivative standing other than for claims against current or former

officer or director based on officer or director’s ultra vires conduct (citing section

20.002(c)(2) of Texas Business Organizations Code)). Here, the HOA conceded at

trial that J. Tran and Le’s pending claims against Nguyen were not derivative

claims.

Thus, J. Tran and Le did not have standing to bring their initial

non-derivative claims based on injuries suffered by the HOA. Assuming that

J. Tran and Le assigned to the HOA their non-derivative claims based on injuries

suffered by the HOA, the HOA did not acquire by virtue of that assignment any

claim that would support the trial court’s judgment for harm suffered by the HOA.

See Boeing, 716 S.W.3d at 154 (holding that nonprofit association assigned

individual claims brought by its members acquired no greater rights or “ability to

19
pursue” claims than those possessed by members and was required to establish, for

each assigned claim, that member suffered “injury in fact”—i.e., could “only

prevail by proving the defendant’s liability to the assignor [member] and the

damages the assignor [member] sustained” (citing Vt. Agency of Nat. Res. v.

United States ex rel. Stevens, 529 U.S. 765, 773 (2000))); see also Specialty

Assocs. of W. Houston v. Adams, No. 01-21-00092-CV, 2022 WL 3452329, at *5

(Tex. App.—Houston [1st Dist.] Aug. 18, 2022, pet. denied) (mem. op.) (noting

that assignee steps into shoes of assignor and may assert same rights as assignor).

Moreover, even assuming the HOA and Nguyen tried J. Tran and Le’s

non-derivative claims based on injuries suffered by the HOA—which were the

only pleaded claims against Nguyen when trial commenced—by consent,

subject-matter jurisdiction cannot be conferred upon a court by consent or waiver.

Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000) (noting that subject-

matter jurisdiction exists by operation of law only, and cannot be conferred upon

any court by consent or waiver).

D. Derivative Claims for Injuries Suffered by the HOA

In their post-trial amendments to their pleading, J. Tran and Le recast their

individual, non-derivative claims against Nguyen based on injuries allegedly

suffered by the HOA as a result of Nguyen’s conduct as derivative claims against

Nguyen for harm suffered by the HOA as a result of Nguyen’s ultra vires conduct.

20
J. Tran and Le argued in their motion for leave that the claims had been tried by

consent. In the HOA’s amended pleading, it asserted claims purportedly assigned

to it by J. Tran and Le, including the new derivative claims in J. Tran and Le’s

amended third-party petition—i.e., claims included in J. Tran and Le’s amended

petition despite the alleged assignment to the HOA. The HOA also argued that the

claims had been tried by consent. The trial court granted the parties’ motions to

amend “to reflect causes of action tried against [] Nguyen by consent.”

The basis for the trial court’s conclusion that the derivative claims were tried

by consent is unclear given the HOA, J. Tran, and Le made no showing in the trial

court that evidence was admitted that was relevant only to the unpleaded derivative

claims and not the pleaded (and largely identical) non-derivative claims. Bos v.

Smith, 556 S.W.3d 293, 307 (Tex. 2018) (admission of evidence relevant to both

pleaded and unpleaded issues does not support application of doctrine of trial by

consent); Moran v. Williamson, 498 S.W.3d 85, 97 (Tex. App.—Houston [1st

Dist.] 2016, pet. denied) (same).

In any case, under the applicable standard of review, the uncertainty

surrounding the purported settlement between the HOA and J. Tran, Le, and

K. Tran, including the terms of any assignment of causes of action, prevents us

from determining which party or parties had standing to bring the derivative

claims. The uncertainty obscures not just which party or parties owned the

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derivative claims at what times but may also impact, for example, whether and

how the relation-back doctrine applies to the HOA, J. Tran, and Le’s amended

pleadings. See, e.g., Alexander v. Turtur & Assocs., 146 S.W.3d 113, 121-22 (Tex.

2004) (noting that amended pleading adding new party ordinarily does not relate

back to original pleading and that “distinct and different” claims do not relate

back); Am. Petrofina, Inc. v. Allen, 887 S.W.2d 829, 831 (Tex. 1994) (holding that

pleading amendment adding back plaintiffs who had been dropped from

multi-plaintiff pleading related back to original pleading because omission of

plaintiffs’ name from interim amendment was inadvertent, discovery as to

plaintiffs continued during period in which their names were omitted from

pleading, and defendants suffered no prejudice from correction of omission);

Uddin v. Cunningham, No. 01-18-00002-CV, 2019 WL 4065273, at *4-5 (Tex.

App.—Houston [1st Dist.] Aug. 29, 2019, pet. dism’d) (mem. op.) (holding that

pleading amendment reflecting assignment of agreement to plaintiff, but that did

not add new party and relied on same common core of operative facts, related back

to original pleading); Chavez v. Andersen, 525 S.W.3d 382, 386-89 (Tex. App.—

Houston [14th Dist.] 2017, no pet.) (holding that amended pleading adding original

defendant’s husband as new defendant in automobile accident litigation did not

relate back to original pleading, declining to apply misnomer exception to general

rule that relation-back doctrine does not apply where new party is added).

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We thus remand the case to the trial court for a determination of its

subject-matter jurisdiction over the derivative claims brought by J. Tran and Le on

behalf of the HOA based on injuries that the HOA allegedly suffered as a result of

Nguyen’s ultra vires conduct and, if appropriate, any further trial-court

proceedings on the claims. See Rusk State Hosp., 392 S.W.3d at 96 (stating that

appellate court should remand if pleadings and record neither demonstrate

jurisdiction nor conclusively negate it, and if defendant does not otherwise

establish that plaintiff was or would be unable to show jurisdiction with full and

fair opportunity to do so).

Jury Trial

In his second issue on appeal, Nguyen argues that the trial court abused its

discretion in denying him a jury trial over his objection to proceeding without a

jury. At the time Nguyen was made a party to the suit, J. Tran, Le, and K. Tran had

filed jury trial demands and paid the jury trial fee, giving all parties the right to a

jury trial. See TEX. R. CIV. P. 220 (“When any party has paid the fee for a jury trial,

he shall not be permitted to withdraw the cause from the jury docket over the

objection of the parties adversely interested.”); In re Marriage of Harrison, 557

S.W.3d 99, 136 (Tex. App.—Houston [14th Dist.] 2018, pet. denied) (“When one

party requests a jury trial and pays the jury fee, all other parties in the suit acquire

the right to a jury trial and can rely upon another party’s proper jury request.”). On

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October 23, 2023, two weeks before trial, J. Tran and Le filed a jury trial waiver.

During a pretrial housekeeping discussion on the first day of trial, when the trial

court asked if all parties had waived the jury fees that had previously been paid, all

parties but Nguyen stated that they had. At that point, Nguyen objected to

proceeding without a jury. K. Tran, who had made a jury demand and paid the

required fee, and the HOA, which like Nguyen was entitled to rely on other

parties’ jury demands and payment of the jury fee, thus waived their jury trial

rights at the earliest just before Nguyen’s objection.

Because our subject-matter jurisdiction is unclear, we do not decide the

issue. See Pearson v. State, 315 S.W.2d 935, 938 (Tex. 1958) (“It is well settled

that the jurisdiction of the appellate court as to the merits of a case extends no

further than that of the court from which the appeal is taken.”); Mills v. Warner

Lambert Co., 157 S.W.3d 424, 426 (Tex. 2005) (quoting Pearson); Univ. of Tex.

Sys. v. Thomas, 464 S.W.3d 754, 760 (Tex. App.—Houston [1st Dist.] 2015, no

pet.) (citing Johnson v. Ventling, 132 S.W.3d 173, 179 (Tex. App.—Corpus Christi

2004, no pet.) (citing Pearson)).

Conclusion

We reverse and remand to the trial court for a determination of its

subject-matter jurisdiction over the derivative claims brought by J. Tran and Le on

behalf of the HOA based on injuries that the HOA allegedly suffered as a result of

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Nguyen’s ultra vires conduct and, if appropriate, any further trial-court

proceedings on the claims.

Amparo “Amy” Guerra
Justice

Panel consists of Justices Guerra, Caughey, and Dokupil.

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