Francisco A. Salinas Hernandez v. Maria Nambo and Hector Nambo

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-23-00306-CV
________________

FRANCISCO A. SALINAS HERNANDEZ, Appellant

v.

MARIA NAMBO AND HECTOR NAMBO, Appellees

_________________________________________________________________ _

On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 22-09-12852-CV
_________________________________________________________________ _

MEMORANDUM OPINION

Appellant, Francisco A. Salinas Hernandez, appeals from a judgment

awarding Appellees, Maria Nambo and Hector Nambo, $83,996 in actual damages,

$127,992 in statutory damages for knowing and intentional misconduct, and $14,350

in attorney fees. Hernandez, who did not appear at trial, argues the trial court erred

in denying his motion for continuance, piercing the corporate veil to hold him

personally liable, and denying his motion for new trial. We affirm.

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Background

In January 2022, the Nambos saw a Facebook ad offering lots for sale in

Splendora, Texas. On January 23, 2022, the Nambos met with Hernandez, who

showed them a plat map with 37 lots located at 17451 S. Tram Road, 23 of which

were marked “Sold.” Hernandez told the Nambos the lots would be part of a new

subdivision called Las Palmas which would have a lake and paved roads. He also

told them the lots could soon be unavailable because he had other interested clients.

On January 24, 2022, the Nambos signed a “Residential Purchase Agreement” for

lots 21, 23, 27 and 29, and paid $63,996 by cashier’s checks payable to the seller,

Sina Maza, LLC. Hernandez is the managing member of Sina Maza, LLC, and

signed the agreement on its behalf.

The Nambos never received deeds for any of the lots. In reality, the 6.72 acres

of land located at 17451 S. Tram Road was owned by Sina Maza, Inc., not Sina

Maza, LLC, and none of the lots existed because the land was never subdivided.

When the Nambos repeatedly contacted Hernandez, he would tell them he was

having health issues, or that he was in Mexico. On April 12, 2022, Hernandez signed

a General Warranty Deed as managing member of Sina Maza, LLC, “who took title

as Sina Maza, Inc.,” conveying the entire 6.72 acres to Goloxa, LLC. On December

14, 2022, Hernandez signed a General Warranty Deed as managing member of

Goloxa, LLC, conveying the property to Black Eye Properties, LLC.

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In September 2022, the Nambos sued Hernandez, both Sina Maza entities, and

Goloxa, for breach of contract, conversion, fraud, real estate fraud, and violations of

the Texas DTPA. Hernandez, who is not an attorney, filed answers for himself and

Goloxa. On October 13, 2022, the trial court issued a Docket Control Order, copies

of which were emailed to the Nambos’ counsel and Hernandez, setting the case for

a non-jury trial nine months later, on July 17, 2023. The DCO set a July 3, 2023,

deadline for filing a motion for continuance.

On June 30, 2023, the Nambos filed a Joint Notice Filing, indicating their

counsel had contacted Hernandez three times in an effort to secure his agreement for

the Joint Notice, to no avail. Instead, Hernandez indicated he wanted a continuance

because he was sick, in Mexico, and unable to attend trial. According to the Joint

Notice, the Nambos objected to any continuance because Hernandez had used the

same excuses in the past.

On July 12, 2023, nine days after the deadline, Hernandez filed a Motion for

Continuance asserting that he needed time to hire an attorney and that he was

“grappling with multiple health problems” making it “unfeasible” for him to

participate in trial. The motion included a Notice of Hearing for 9:00 a.m., without

indicating a date.

Hernandez did not appear when the case was called for trial on July 17, 2023.

The trial court acknowledged Hernandez’s Motion for Continuance but declined to

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rule on it since it was not set for hearing. After receiving evidence, the trial court

signed a Final Judgment awarding the Nambos the $63,996 purchase price, an

additional amount of $127,992 (two times the actual economic damages) for

knowing and intentional conduct, $20,000 to Hector Nambo for mental anguish, and

$14,350 in attorney fees. Hernandez filed a Motion for New Trial which was later

denied by written order. Upon the Nambos’ request, the trial court entered Findings

of Fact and Conclusions of Law. Hernandez then timely appealed.

Analysis

Hernandez represented himself in the trial court and does so on appeal. We

liberally construe pleadings and briefs filed by a self-represented litigant. Giddens v.

Brooks, 92 S.W.3d 878, 880-81 (Tex. App.—Beaumont 2002, pet. denied).

Nevertheless, a self-represented litigant “is still required to comply with the law and

rules of procedure.” Id. “There cannot be two sets of procedural rules, one for

litigants with counsel and the other for litigants representing themselves. Litigants

who represent themselves must comply with the applicable procedural rules, or else

they would be given an unfair advantage over litigants represented by counsel.”

Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978).

In his first issue, Hernandez complains the trial court erred by denying his

motion for continuance. To present a complaint for appellate review, our rules first

require the record to show not only that a timely request or motion was made to the

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trial court, but also either that the trial court expressly or implicitly ruled on the

request or motion, or that the complaining party objected when the trial court refused

to rule. Tex. R. App. P. 33.1.

The record shows Hernandez’s Motion for Continuance was untimely because

it was filed after the July 3, 2023, deadline even though Hernandez knew before the

deadline that he wanted a continuance, having already expressed to the Nambos’

counsel on June 30, 2023, that he was sick and in Mexico.

The record does not show the trial court expressly ruled on the motion because

it was never set for hearing. That said, even if we were to infer the trial court

implicitly denied a continuance by proceeding with trial, we will not disturb a trial

court’s denial of a continuance in the absence of a clear abuse of discretion. Villegas

v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). Under an abuse-of-discretion standard,

we defer to any factual determinations made by the trial court so long as they are

supported by evidence. Haedge v. Cent. Tex. Cattlemen’s Ass’n, 603 S.W.3d 824, 827

(Tex. 2020). The Nambos provided the trial court evidence that Hernandez had

previously used similar excuses to avoid their efforts to contact him, from which the

trial court may have reasonably concluded Hernandez’s proffered excuses for not

attending trial were not credible. The trial court also may have reasonably concluded

Hernandez had not used diligence in seeking to retain counsel since the case had

been set for trial with nine months’ notice. The trial court was also within its

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discretion to deny Hernandez’s motion because it was untimely. We overrule

Hernandez’s first issue.

In his second issue, Hernandez complains that the trial court erred by denying

his Motion for New Trial. Hernandez relies entirely on Dolgencorp of Tex., Inc. v.

Lerma, 288 S.W.3d 922 (Tex. 2009), in which the Texas Supreme Court applied the

factors set out in Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939),

to reverse a post-answer default judgment where the defendant’s attorney had

provided evidence of a credible explanation for why he mistakenly believed the trial

court would postpone trial: he had taken steps to notify the court that he was already

in trial in another court in another county. Lerma, 288 S.W.3d at 926.

Based on its holding in Craddock, the Texas Supreme Court in Ivy v. Carrell,

407 S.W.2d 212, 213-14 (Tex. 1966), announced the rule that a party may obtain a

new trial if his failure to appear for trial was neither intentional nor the result of

conscious indifference and his motion for a new trial “sets up a meritorious defense

and is filed at a time when the granting thereof will occasion no delay or otherwise

work an injury to the plaintiff.” Hernandez’s unverified Motion for New Trial does

not establish each of these factors.

In its Order Denying Motion for New Trial, the trial court found Hernandez

made a conscious decision not to appear for trial despite failing to get a ruling on his

motion for continuance. Based on the record before us, we cannot say the trial court

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abused its discretion in so finding. See In re Sandoval, 619 S.W.3d 716, 721 (Tex.

2021) (“A trial court’s denial of a motion for new trial is reviewed for abuse of

discretion.”). That said, even if we were to accept that Hernandez believed his tardy,

ungranted motion for continuance somehow unilaterally relieved him of the

obligation to appear for trial, his motion for new trial fails to set up a meritorious

defense. The only defense mentioned in the motion is that “these claims are entirely

against the LLC and not against [Hernandez] personally” because “no payment or

benefit was ever provided to [Hernandez] directly.” As discussed below, this is not a

meritorious defense, because under Texas law, Hernandez is personally liable for his

own torts. Lastly, Hernandez’s Motion for New Trial fails to address, much less

establish, that granting a new trial would not cause undue delay or injury to the

Nambos. Because Hernandez’s Motion for New Trial fails to establish all three

elements, the trial court did not abuse its discretion by denying the motion. We

overrule Hernandez’s second issue.

In his third issue, Hernandez claims the Nambos and their counsel testified

falsely at trial and during a post-trial hearing regarding Hernandez’s alleged inability

to pay for the appellate record. Hernandez’s third issue presents nothing for our

review because it does not assign error to the trial court. Even if we were to construe

this issue as assigning error, Hernandez did not preserve any such error by making

any similar complaint in the trial court and obtaining a ruling. Tex. R. App. P. 33.1.

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In this Court, Hernandez attempts to show the testimony in question is false by

injecting new “facts” in his brief which do not appear in the record. “[W]e do not

consider factual assertions that appear solely in briefs and are not supported by the

record.” Marshall v. Hous. Auth. of City of San Antonio, 198 S.W.3d 782, 789 (Tex.

2006). We overrule Hernandez’s third issue.

In his fourth and fifth issues, Hernandez argues the trial court erred in piercing

the corporate veil and holding him personally liable because the Nambos’ contract

was with Sina Maza, LLC, not Hernandez. The judgment does not depend on a

breach of contract by Hernandez nor on any veil-piercing theory, because the trial

court found Hernandez personally liable for his own tortious conduct. “Under well-

settled Texas common law, individuals are personally liable for torts they commit as

corporate agents.” Keyes v. Weller, 692 S.W.3d 274, 275 (Tex. 2024). The trial

court’s Findings of Fact and Conclusions of Law include,

[Finding of Fact] 11. Francisco Salinas Hernandez engaged in fraud in
his dealings with Maria Nambo and Hector Nambo by materially
misrepresenting that he would convey, on behalf of Sina Maza, LLC –
a company which did not even own the Property – real estate with no
intention of ever doing so. Maria Nambo and Hector Nambo reasonably
relied upon those misrepresentations.

[Finding of Fact] 12. Francisco Salinas Hernandez personally, and as
agent for Sina Maza Inc, Sina Maza LLC, Yardeno LLC and Goloxa
LLC is a party to this Residential Purchase Agreement transaction with
Maria Nambo and Hector Nambo. He is the key operator and the one
who made multiple misrepresentations to the Nambos. He is personally
liable for his own actions.

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...

[Conclusion of Law] 8. Under Rule 301, Maria Nambo’s and Hector
Nambo’s highest and best recovery is under the DTPA and the statutory
real estate fraud claim (because both permit a recovery of attorney’s
fees and some form of punitive damages – up to treble per the DTPA
and the same as for common law fraud per statutory real estate fraud.

Hernandez does not challenge Findings 11 or 12, and as outlined above, they

are supported by evidence in the record. “We defer to unchallenged findings of fact

that are supported by some evidence.” Tenaska Energy, Inc. v. Ponderosa Pine

Energy, LLC, 437 S.W.3d 518, 523 (Tex. 2014). We overrule Hernandez’s fourth and

fifth issues.

Conclusion

Having overruled all of Hernandez’s issues, we affirm the trial court’s

judgment.

AFFIRMED.

KENT CHAMBERS
Justice

Submitted on March 26, 2025
Opinion Delivered May 29, 2025

Before Golemon, C.J., Johnson and Chambers, JJ.

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