1 Solar Solution, LLC and Mohammad Ali Samana v. S&A Wholesale Inc., D.B.A. Trendy Energy Solutions and Trendy Communications

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-25-00220-CV
___________________________

1 SOLAR SOLUTION, LLC AND MOHAMMAD ALI SAMANA, Appellants

V.

S&A WHOLESALE INC., D.B.A. TRENDY ENERGY SOLUTIONS AND
TRENDY COMMUNICATIONS, Appellee

On Appeal from the 467th District Court
Denton County, Texas
Trial Court No. 24-3432-467

Before Kerr, Womack, and Walker, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION

I. INTRODUCTION

Appellee S&A Wholesale Inc., d/b/a Trendy Energy Solutions and Trendy

Communications (Trendy), obtained a default judgment against Appellants 1 Solar

Solution, LLC and Mohammad Ali Samana. In two issues,1 Appellants argue that

because they presented evidence satisfying the Craddock factors, the trial court abused

its discretion by failing to set aside the default judgment. See Craddock v. Sunshine Bus

Lines, Inc., 133 S.W.2d 124, 126 (Tex. [Comm’n Op.] 1939). Because the record

supports the trial court’s denial of Appellants’ new-trial motion on the ground that

their failure to answer was intentional or the result of conscious indifference, we will

affirm.

II. BACKGROUND

Trendy sued Appellants for breach of contract, Texas Deceptive Trade

Practices Act violations, common law fraud, fraudulent inducement, promissory

estoppel, conversion, Texas Theft Liability Act violations, conspiracy, breach of

fiduciary duty, and money had and received due to Appellants’ alleged failure to

deliver and install certain solar and electric equipment to Trendy’s customers’ sites.

On April 27, 2024, Samana, in his individual capacity, was personally served with the

citation and the petition. Three days later, 1 Solar Solution, LLC was served with the

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Appellants’ first issue addresses the first Craddock factor, and their second issue
addresses the second and third factors.

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citation and the petition by delivery of the documents to its registered agent, Samana.

After both Appellants failed to file an answer, on February 4, 2025, Trendy moved for

default judgment, which the trial court entered.

Appellants timely filed a combined motion to vacate default judgment and

motion for new trial, which they later amended. In the amended motion, Appellants

contended that their failure to appear was not intentional but was the result of

accident or mistake because they believed that they were represented by counsel but

later learned that “their apparent counsel was not licensed to practice law.” Further,

Appellants argued that they had a meritorious defense and that granting the motion

would not cause Trendy any delay or injury. Appellants attached Samana’s

declaration, which will be discussed in more detail below, to the amended motion.

Trendy filed a response to the motion, arguing that Appellants not only failed

to establish the first Craddock factor but also “actually undermine[d] and negate[d] the

establishment of [the] first Craddock factor.” Trendy also disputed the other Craddock

factors and attached evidence to its response, which consisted of an email and

purchase order agreements.

The trial court held a hearing on Appellants’ motion, but no evidence was

offered or admitted.2 After the arguments, the trial court denied the motion and

signed an order to that effect. Appellants appealed from that order.

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At the hearing, Trendy’s attorney stated that he brought his client to testify
because he had thought that Samana would be there to testify for Appellants.

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III. DISCUSSION

A. Standard of Review and Applicable Law

We review the denial of a new-trial motion for an abuse of discretion. B. Gregg

Price, P.C. v. Series 1 – Virage Master LP, 661 S.W.3d 419, 423 (Tex. 2023). A trial court

abuses its discretion if it acts without reference to any guiding rules or principles—

that is, if its act is arbitrary or unreasonable. In re Acad., Ltd., 625 S.W.3d 19, 25 (Tex.

2021) (orig. proceeding).

Under Craddock, a defaulting party is entitled to a new trial when: “(1) the

failure to appear was not intentional or the result of conscious indifference, but was

the result of an accident or mistake, (2) the motion for new trial sets up a meritorious

defense, and (3) granting the motion will occasion no delay or otherwise injure the

plaintiff.” B. Gregg Price, P.C., 661 S.W.3d at 423–24 (quoting Dolgencorp of Tex., Inc. v.

Lerma, 288 S.W.3d 922, 925 (Tex. 2009)); see Craddock, 133 S.W.2d at 126. The first

Craddock element3 is satisfied when the defendant’s factual assertions, “if true, negate

intentional or consciously indifferent conduct by the defendant and the factual

Samana, however, was not at the hearing; Appellants were represented only by
counsel.
3
Because resolution of Craddock’s first element is dispositive, we detail neither
the law nor the evidence regarding the remaining two elements. See Century Sports
Wears, Inc. v. Wallis Bank, No. 02-20-00201-CV, 2021 WL 1685957, at *2 (Tex. App.—
Fort Worth Apr. 29, 2021, pet. denied) (mem. op.) (“[W]e will uphold the denial of
the motion for new trial if the evidence in the appellate record supports the denial
based on a failure to satisfy any of the three Craddock elements.”); see also Tex. R. App.
P. 47.4.

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assertions are not controverted by the plaintiff.” Milestone Operating, Inc. v. ExxonMobil

Corp., 388 S.W.3d 307, 310 (Tex. 2012). Conscious indifference means more than

mere negligence and has been defined to mean “the failure to take action that would

seem obvious to a reasonable person under the same circumstances.” McLeod v. Gyr,

439 S.W.3d 639, 655 (Tex. App.—Dallas 2014, pet. denied). “The failure to respond

must arise from more than mere negligence, and the element of conscious

indifference can be overcome by a reasonable explanation.” In re Marriage of Sandoval,

619 S.W.3d 716, 721 (Tex. 2021) (quoting Sutherland v. Spencer, 376 S.W.3d 752, 755

(Tex. 2012)).

“We look to whether the new-trial movant made factual assertions that, if true,

negate intentional or consciously indifferent conduct and whether the non-movant

controverted the movant’s factual assertions.” Dixie House Café, Inc. v. Eckman,

No. 02-24-00280-CV, 2025 WL 285354, at *2 (Tex. App.—Fort Worth Jan. 23, 2025,

no pet.) (mem. op.). In determining this issue, we look at all of the evidence in the

record. Id.

When, as in this case, “no findings of fact and conclusions of law are filed, the

denial of a motion to set aside the default judgment and for new trial must be upheld

on any legal theory supported by the evidence.” Huey-You v. Kimp, No. 02-16-00172-

CV, 2018 WL 359633, at *5 (Tex. App.—Fort Worth Jan. 11, 2018, pet. denied)

(mem. op.); see Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984).

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B. Analysis

Appellants attached one declaration to their amended motion, in which Samana

averred that he was the President and Director of 1 Solar Solution, LLC. Samana’s

only substantive comments addressing the first Craddock element were:

10. As set forth in Defendants’ Amended Motion to Vacate
Default Judgment and Motion for New Trial filed in the present lawsuit,
Defendants’ failure to file an answer was because of accident or mistake
rather than intentional or conscious indifference. On May 21, 2024, I
sent a copy of the petition in this lawsuit to Capital Legal, whom I was
led to believe was providing legal representation in this matter. I was led
to believe Capital Legal had taken steps to represent me and did not
know they had not filed an answer in the lawsuit. Once I became aware
that Capital Legal was not a law firm, and that the individual I believed
to be my attorney was not licensed to practice law, I began contacting
attorneys to seek legal representation for 1 Solar Solutions and myself.

11. I first learned Plaintiff sought default judgment in this case
when I received an email of a motion for default judgment via email on
February 4, 2025. I was not aware the motion was set for hearing, nor
did I know the motion had been granted, until my first meeting with the
attorney who was ultimately retained to represent Defendants in this
matter. Defendants’ failure to file an answer prior to the default
judgment was because of accident or mistake in that the entity I believed
to be legal counsel had not filed an answer. As soon as I became aware
of this mistake, I took steps to seek the representation who now appears
for Defendants in this lawsuit.

In its response to Appellants’ motion, Trendy argued that Appellants’

statements in the motion and declaration “actually undermine and negate the

establishment of [the] first Craddock factor.” Among other criticisms, Trendy

complained about the factually insufficient and conclusory statements in Samana’s

declaration, noting that Appellants did not state that “they entered into an actual

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engagement with Capital Legal Services,” “never presented additional facts to suggest

that they had a basis for relying on Capital Legal Services to file an answer,” and

“never even explicitly indicate[d] that they expected Capital Legal Services to actually

file an answer.” Moreover, Trendy pointed out that Appellants were aware of the

case for many months before Trendy’s motion for default judgment was filed. Trendy

also noted that while Appellants’ deadlines to file answers were May 20, 2024 (for

Samana individually), and May 27, 2024 (for 1 Solar Solution, LLC), Appellants still

failed to take any action until after the motion for default judgment was filed on

February 4, 2025.

In deciding if Appellants satisfied the first Craddock element, we must focus on

their knowledge and conduct. See In re R.R., 209 S.W.3d 112, 115 (Tex. 2006); see also

Ramirez v. LaCombe, No. 01-17-00977-CV, 2019 WL 922058, at *3 (Tex. App.—

Houston [1st Dist.] Feb. 26, 2019, no pet.) (mem. op.) (“To support the motion for

new trial, the defendant must make factual allegations that are supported by evidence,

such as accompanying affidavits setting forth facts, which, if true, satisfy the

standard.”). Here, we must examine Samana’s declaration because Appellants

presented no live witnesses at the hearing on the amended motion for new trial. See

Puri v. Mansukhani, 973 S.W.2d 701, 715 (Tex. App.—Houston [14th Dist.] 1998, no

pet.) (“If a plaintiff contests the mistake/conscious indifference element, however, an

evidentiary hearing with live witnesses is ordinarily required.”); see also Dir., State Emps.

Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994) (“Affidavits attached to

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the motion for new trial do not have to be offered into evidence in order to be

considered by the trial court for the meritorious defense element or any other element

of the Craddock test.”); Puri, 973 S.W.2d at 712 (“A motion for new trial to set aside a

default judgment is a complaint on which evidence must be heard.” (citing Tex. R.

Civ. P. 324(b)(1))).

In one of only two specific dates mentioned in his declaration, Samana states

that he did not send the citation and petition to “Capital Legal” until May 21, 2024, a

date past the answer date for the individual claims against him. See Tex. R. Civ.

P. 99(b). Then, according to Samana’s declaration, he took no action until he received

notice of the filing of the motion for default judgment more than eight months

later—on February 4, 2025, the second specific date mentioned in the declaration.

The declaration fails to identify who “Capital Legal” is, fails to explain with whom he

spoke at “Capital Legal” and when, and fails to explain how he was “led to believe”

that “Capital Legal” had taken steps to represent him. See Holt Atherton Indus., Inc. v.

Heine, 835 S.W.2d 80, 83 (Tex. 1992) (stating that when a defendant relies on his agent

to file an answer, he must demonstrate that both he and his agent were free of

conscious indifference). It also fails to explain what happened in the intervening days

and months between May 21, 2024, and February 4, 2025.

Moreover, after February 4, 2025, the declaration reflects that Samana took no

immediate action that would have prevented entry of the default judgment on

February 9, 2025. Samana’s declaration “makes clear that he understood an answer

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was required, but nothing in the record indicates that he tried to file one on his own

or contact either the trial court or opposing counsel in an effort to obtain additional

time to do so.” Estrada v. Boss Exotics, LLC, 703 S.W.3d 454, 459 (Tex. App.—Dallas

2024, no pet.); see In re A.T., No. 05-16-00539-CV, 2017 WL 2351084, at *10 (Tex.

App.—Dallas May 31, 2017, no pet.) (mem. op.) (stating that the knowledge and acts

of the defaulting party may be considered when determining whether the failure to

answer was due to intentional disregard or conscious indifference); see also Levine v.

Shackelford, Melton & McKinley, L.L.P., 248 S.W.3d 166, 168–69 (Tex. 2008) (“This

pattern of ignoring deadlines and warnings from the opposing party amounts to

conscious indifference.”); Fid. & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571,

576 (Tex. 2006) (stating that consciously indifferent conduct occurs when “the

defendant knew it was sued but did not care”).

In short, Samana’s declaration is factually insufficient and conclusory. See Holt

Atherton Indus., Inc., 835 S.W.2d at 82 (stating that conclusory allegations in affidavits

are insufficient). The declaration provided insufficient factual proof to establish

accident or mistake or the absence of conscious indifference that would justify a

conclusion that the trial court abused its discretion in denying the motion for new

trial. See Century Sports Wears, Inc., 2021 WL 1685957, at *5 (finding that appellants’

factually insufficient and conclusory affidavit failed to satisfy the first Craddock

element and would not support a finding of abuse of discretion); see also Motiograph,

Inc. v. Matthews, 555 S.W.2d 196, 197 (Tex. App.—Dallas 1977, writ ref’d n.r.e.)

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(“[T]hese statements are merely conclusory and do not set forth sufficiently specific

facts from which the trial court or this court can determine whether the conscious

indifference standard has been met.”).4

On this record, the trial court reasonably could have found that Samana’s

explanation did not negate conscious indifference to filing an answer before

judgment. See Uptown RE Invs., LLC v. COP Enters., LLC, No. 05-24-00906-CV, 2025

WL 1261944, at *4 (Tex. App.—Dallas Apr. 30, 2025, no pet.) (mem. op.). Therefore,

we conclude that the trial court did not abuse its discretion by impliedly finding that

Appellants did not meet their burden on Craddock’s first element and by denying their

new-trial motion. See Dixie House Café, Inc., 2025 WL 285354, at *6; Century Sports

Wears, Inc., 2021 WL 1685957, at *5. We overrule Appellants’ first issue.

In their brief, Appellants argue that their case is “closer to cases like In re R.R.,
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where a party’s incorrect belief that they are represented by counsel is sufficient to
negate conscious indifference.” 209 S.W.3d at 115. But R.R., a case involving the
termination of parental rights, is distinguishable. There, the trial court had before it at
the motion-for-new-trial hearing not only a detailed affidavit and live testimony from
the mother whose rights were terminated but also the testimony of a caseworker that
confirmed that she had mailed the mother information about the progress of the case,
hearing dates, a service plan, and information about the children’s progress but
nevertheless failed to inform the mother that the hearing that was set was to terminate
the mother’s parental rights. Id. According to the supreme court, the mother’s
“affidavit and testimony . . . were to the effect that based on her prior experiences
with the court system and her contacts with CPS, she believed no action on her part
was necessary for her interests to be protected and for an attorney to be appointed for
her without further action on her part.” Id. That is unlike the situation here, where
Samana never contends that he was misled by the opposing party and where he had
additional notice before the default judgment was taken yet failed to take any action to
prevent it.

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IV. CONCLUSION

Having overruled Appellants’ first issue and needing not address the second

issue,5 we affirm the trial court’s judgment.

/s/ Dana Womack

Dana Womack
Justice

Delivered: October 23, 2025

5
Because the first Craddock element is dispositive, we need not address the issue
dealing with the other elements. See Tex. R. App. P. 47.4.

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