NUMBER 13-24-00343-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
SOUTHERN STAR TRANSPORT, INC., Appellant,
v.
LOS FRESNOS CONSTRUCTION, INC., Appellee.
ON APPEAL FROM THE COUNTY COURT AT LAW NO. 3
OF CAMERON COUNTY, TEXAS
MEMORANDUM OPINION
Before Justices Silva, Peña, and Cron
Memorandum Opinion by Justice Peña
Appellant Southern Star Transport, Inc. (Southern Star) appeals the trial court’s
take-nothing judgment in favor of appellee, Los Fresnos Construction, Inc. (LFC). In
twelve issues, which we reorganize and renumber as three, Southern Star argues that:
(1) LFC failed to file a verified denial; (2) the evidence is legally and factually insufficient
to support the trial court’s findings of fact; and (3) the trial court erred in reaching its conclusions of law. We affirm.
I. BACKGROUND
This appeal arises from a bench trial involving claims for sworn account and breach
of contract. The parties disputed whether LFC was responsible for payment to Southern
Star.
The trial court heard evidence whereby it was established through testimony that
Texas Descon (Descon), which was not a party to the lawsuit, was hired by Pharr-San
Juan-Alamo Independent School District (PSJA) as a general contractor to build Ramirez
Elementary School (the Ramirez Project). Descon then entered into an agreement with
LFC to do site work on the Ramirez Project and a separate agreement with Southern Star
to provide and haul building materials for the Ramirez Project. Upon delivery of the
material to the construction site, Southern Star sent invoices to LFC and LFC forwarded
those invoices to Descon for payment. Descon owed payment “upon delivery of the
building materials” and paid both parties with a joint check.
The trial court found that during construction of the Ramirez Project, Descon
“began to have financial problems, failed to pay several of its subcontractors and material
suppliers and went into bankruptcy.” On February 12, 2019, Southern Star filed suit on a
sworn account and for breach of contract against LFC alleging that “[Southern Star] sold
to [LFC] one or more items of goods, wares, merchandise, or services” and that “[LFC]
accepted each item and became bound to pay [Southern Star] the designated price,
which is a reasonable, usual, and customary price for each item.” Southern Star further
alleged that LFC “fail[ed] to make payments on the account.”
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Southern Star’s managing partner, Tommy Lee Freeman, testified that Descon
was a general contractor, LFC “was basically a site contractor,” and Southern Star
“provided hauling of dirt, caliche, some hot mix[,] . . . [and] just various materials [LFC]
used for their construction.” Freeman further testified that he was aware that “[LFC] was
a subcontractor to Descon,” and he considered the relationship with LFC as an “open
account” on the Ramirez Project.
During cross-examination, Freeman acknowledged that he did not “remember any
of this stuff” and that “[t]his is stuff that [he] gathered from the documents that [he had]
been reviewing.” When pressed for details about “any written agreement between
[Southern Star] and [LFC],” Freeman admitted that there was no written agreement and
that he was not “personally aware” of the documents that were admitted as evidence by
Southern Star. The record reflects that these were the same documents produced in
discovery that Freeman “[had] been reviewing.” Freeman further acknowledged that
Southern Star’s salesman, Joe Salinas,1 was the person “that was involved directly with
LFC” since he was [Southern Star’s] salesman at the time of the work performed under
the agreement. Lastly, Freeman conceded on cross-examination that a check from
Descon admitted into evidence listed both Southern Star and LFC as payees and that the
agreement for materials and hauling materials to the Ramirez Project construction site
was between Descon and Southern Star. When asked by counsel whether the “invoices
that [Southern Star] submitted [were for] any of the work done after February 11, 2015,
Freeman responded that the sworn account was closed after the final invoice though he
could not remember.
1 Salinas was not called to testify by either party.
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Gisela De La Fuente, LFC’s former office manager, testified that she was familiar
with the invoices because they “were sent to [her],” she “always sent [them] to [Descon],
and [Descon] was to pay.” De La Fuente stated that Descon “would make a check out to
both [Southern Star and LFC].”
On cross-examination, De La Fuente testified that LFC and Southern Star “had a
joint–checking agreement with Descon” regarding the Ramirez Project. De La Fuente
further testified that payment was due from Descon when the construction material was
delivered. According to De La Fuente, the agreement between Descon and Southern Star
covered the materials and the hauling of materials to the construction site, whereas LFC’s
agreement with Descon “covered other things,” particularly the site work.
At the conclusion of the trial, the court entered a take-nothing judgment in favor of
LFC. Southern Star requested findings of fact and conclusions of law. The trial court
entered the following:
FINDINGS OF FACT
1. [Descon], a construction company, had a construction contract with
[PSJA] to build Ramirez Elementary School.
2. [Descon] contracted with [LFC] and [Southern Star] to haul certain
materials to the construction site to be used by [LFC] to do site work
at [the Ramirez Project].
3. [Descon] entered into a “joint check agreement” with [LFC] and
[Southern Star] whereby [Descon] would issue a joint check to both
Parties for each load of materials delivered by the Parties to the
construction site.
4. Payment for the hauling of building materials to the construction was
due from [Descon] upon delivery of the building materials to the
construction site.
5. During the construction of [the Ramirez Project], [Descon] began to
have financial problems, failed to pay several of its subcontractors
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and materials suppliers and went into bankruptcy.
6. [LFC] and [Southern Star] were two of the subcontractors that
[Descon] failed to pay for work performed and construction material
delivered.
7. [Descon] failed to pay [Southern Star] a total of $26,508.00.
8. [Southern Star] filed suit in this case more than 4 years after the day
that the dealings in which [Southern Star] and [LFC] were interested
together ceased. See TEX. CIV. PRAC. & REM. CODE § 16.004(c).
CONCLUSIONS OF LAW
9. [Southern Star] failed to prove by a preponderance of the evidence
that it had a contract with [LFC] to deliver construction materials to
[the Ramirez Project].
10. [Southern Star] failed to prove by a preponderance of the evidence
that “[Southern Star] sold to [LFC] one or more items of goods,
wares, merchandise, or services” as alleged in [Southern Star’s]
Petition for Suit on Sworn Account and Breach of Contract.
11. [Southern Star] failed to prove by a preponderance of the evidence
that [LFC] accepted “items of goods, wares, merchandise, or
services” and [“]became bound to pay” [Southern Star] a “designated
price, which is reasonable, usual, and customary for such an item,”
as alleged in [Southern Star’s] Petition on Suit for Sworn Account
and Breach of Contract.
12. [Southern Star] failed to prove by a preponderance of the evidence
that [LFC] “has defaulted by failing to make payments on the
account,” as alleged in [Southern Star’s] Petition for Suit on Sworn
Account and Breach of Contract.
13. [Southern Star] failed to prove by a preponderance of the evidence
that [LFC] breached any contract with [Southern Star].
14. [Southern Star failed to prove by a preponderance of the evidence
that [LFC] owed it any money from the Ramirez [Project].
15. The Court finds by a preponderance of the evidence that [Southern
Star] failed to file suit before the statute of limitations ran and
therefore its suit against [LFC] was barred by Section 16.004(c) of
the Texas Civil Practices and Remedies Code.
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16. The Court thus enters judgment for [LFC] on all claims brought by
[Southern Star] and orders that [Southern Star] take nothing in this
lawsuit.
17. The Court finds that each Party will bear its own attorneys fees and
costs of court.
This appeal followed.
II. VERIFIED DENIAL
By its first issue, Southern Star contends that the trial court erred when it entered
a take-nothing judgment because “[LFC] failed to file a written verified denial and as a
matter of law [Southern Star] was entitled to judgment.” See TEX. R. CIV. P. 185 (“A party
resisting [a suit on sworn account] shall comply with the rules of pleading as are required
in any other kind of suit, provided, however, that if he does not timely file a written denial,
under oath, he shall not be permitted to deny the claim, or any item therein, as the case
may be.”); Villarreal v. Myers, No. 13-20-00215-CV, 2022 WL 868537, at *6 (Tex. App.—
Corpus Christi–Edinburg Mar. 24. 2022, no pet.) (mem. op.).
LFC’s answer as included in the appellate record did not include a verified denial.
However, LFC explained in its brief that it alerted the district clerk’s office that the
appellate record was incomplete because “the page containing the ‘[v]erification’ was left
off” of the original filing. See TEX. R. APP. P. 34.5(c)(1) (“If a relevant item has been omitted
from the clerk’s record, the trial court, the appellate court, or any party may by letter direct
the trial court clerk to prepare, certify, and file in the appellate court a supplement
containing the omitted item.”). The district clerk’s office subsequently filed an amended
appellate record on March 18, 2025. See id. R. 34.5(c)(3) (“Any supplemental clerk’s
record will be part of the appellate record.”). After reviewing the amended record, it
appears that LFC’s original answer included a verified denial. See id. Southern Star’s first
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issue is overruled.
III. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Southern Star argues (1) legally and factually insufficient evidence supports
findings of fact two, four, seven, and eight; and (2) the trial court erred in conclusions of
law nine through twelve concerning Southern Star’s sworn account and breach of contract
claims.
A. Standard of Review
“In an appeal from a bench trial, the trial court’s findings of fact have the same
force and effect as jury findings.” SCS Builders, Inc. v. Searcy, 390 S.W.3d 534, 539 (Tex.
App.—Eastland 2012, no pet.); Sharifi v. Steen Auto., LLC, 370 S.W.3d 126, 147 (Tex.
App.—Dallas 2012, no pet.). “[W]hen a party challenges the trial court’s findings of
fact, . . . we review those findings by the same standards we use in reviewing the
sufficiency of the evidence supporting a jury’s answers.” Garcia v. Tautenhahn, 314
S.W.3d 541, 544 (Tex. App.—Corpus Christi–Edinburg 2010, no pet.). “If there is any
evidence of a probative nature to support the trial court’s judgment, we will not set it aside,
and we may not substitute our findings of fact for those of the trial court.” Id.
“Unchallenged findings of fact are binding on the appellate court, unless the contrary is
established as a matter of law or there is no evidence to support the finding.” Sharifi, 370
S.W.3d at 147; Hegar v. El Paso Elec. Co., 629 S.W.3d 518, 527 (Tex. App.—Austin
2021, pet. denied); see also Tenaska Energy, Inc. v. Ponderosa Pine Energy, LLC, 437
S.W.3d 518, 523 (Tex. 2014) (“We defer to unchallenged findings of fact that are
supported by some evidence.”). “When, as here, the appellate record contains a
reporter’s record, findings of fact on disputed issues are not conclusive and may be
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challenged for sufficiency of the evidence.” Sharifi, 370 S.W.3d at 147. We review the trial
court’s findings of fact for both legal and factual sufficiency. BMC Software Belg., N.V. v.
Marchand, 83 S.W.3d 789, 794 (Tex. 2002).
A legal sufficiency challenge may only be sustained when (1) the record discloses
a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of
evidence from giving weight to the only evidence offered to prove a vital fact, (3) the
evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence
establishes conclusively the opposite of a vital fact. City of Keller v. Wilson, 168 S.W.3d
802, 810 (Tex. 2005). In determining whether there is legally sufficient evidence to
support the finding, we must consider evidence favorable to the finding if a reasonable
factfinder could, and disregard evidence contrary to the finding unless a reasonable
factfinder could not. Id. The final test for legal sufficiency must always be whether the
evidence at trial would enable reasonable and fair-minded people to reach the verdict
under review. Id. at 822.
In reviewing the factual sufficiency of a finding where the party challenging it does
not have the burden of proof, as here, we weigh all the evidence in the record and set
aside the challenged finding only if it is so contrary to the overwhelming weight and
preponderance of the evidence that it is clearly wrong and manifestly unjust. Ortiz v.
Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per curiam); Cain v. Bain, 709 S.W.2d 175, 176
(Tex. 1986). We must defer to the trial court’s determinations of witness credibility and
demeanor. See In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).
We review a trial court’s conclusions of law de novo, whether express or implied.
See BMC Software, 83 S.W.3d at 794; Santa Fe Petroleum, L.L.C. v. Star Canyon Corp.,
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156 S.W.3d 630, 636 (Tex. App—Tyler 2004, no pet.). “The appellant may not challenge
a trial court’s conclusions of law for factual insufficiency; however, the reviewing court
may review the trial court’s legal conclusions drawn from the facts to determine their
correctness.” Id. “We are not bound by the trial court’s legal conclusions, but the
conclusions of law will be upheld on appeal if the judgment can be sustained on any legal
theory supported by the evidence.” Sheetz v. Slaughter, 503 S.W.3d 495, 502 (Tex.
App.—Dallas 2016, no pet.). “Incorrect conclusions of law will not require reversal if the
controlling findings of fact will support a correct legal theory.” Id. “Moreover, conclusions
of law may not be reversed unless they are erroneous as a matter of law.” Id.
B. Analysis
1. Findings of Fact
Findings two, four, and seven concern the same ultimate issue: whether the
evidence permitted the trial court to conclude that Descon, rather than LFC, was
responsible for payment to Southern Star for providing and hauling construction material
to the Ramirez Project site. We therefore address those findings together.
Freeman testified that Southern Star maintained an account associated with LFC
and that invoices for payment were sent to LFC. However, Freeman also acknowledged
that Descon issued at least one payment jointly to Southern Star and LFC and conceded
that the parties operated under a joint-check agreement regarding the Ramirez Project.
Freeman ultimately acknowledged on cross-examination that Southern Star submitted
invoices that Descon paid through joint checks issued to Southern Star and LFC.
De La Fuente likewise testified that Descon was responsible for payment upon
delivery of the materials to the Ramirez Project site and that invoices received from
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Southern Star were “always sent to [Descon], and [Descon] was to pay.” De La Fuente
further testified that the payment arrangement regarding the Ramirez Project “was
between Descon and Southern Star . . .[i]t was never with [LFC]” and that the agreement,
as between Descon and Southern Star, covered the materials and the hauling of materials
to the Ramirez Project site, whereas LFC’s agreement with Descon “covered other
things,” particularly the site work.
Freeman acknowledged that Descon issued at least one joint payment to Southern
Star and LFC and agreed that Descon ultimately paid invoices submitted in connection
with the Ramirez Project. De La Fuente likewise testified that invoices received from
Southern Star were forwarded to Descon for payment and that Descon was responsible
for payment upon delivery of the materials. The trial court was entitled to credit that
testimony and resolve any conflicts in the evidence accordingly. See In re J.O.A., 283
S.W.3d at 346. Viewed in the light most favorable to the judgment, this evidence
constitutes more than a scintilla of evidence supporting findings two, four, and seven. See
City of Keller, 168 S.W.3d at 822.
Considering the record as a whole, we cannot conclude those findings are so
contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.
See Ortiz, 917 S.W.2d at 772. Accordingly, we overrule Southern Star’s challenges to
findings two, four, and seven.
The trial court also found that Southern Star filed suit more than four years after
“the dealings in which [Southern Star] and [LFC] were interested together ceased.”
Freeman acknowledged that he could not remember whether any of Southern Star’s
invoices reflected work performed after February 11, 2015, and De La Fuente testified
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that the Ramirez Project was the last project involving both Southern Star and LFC. From
this evidence, the trial court could reasonably infer that the parties’ dealings ceased no
later than February 11, 2015. Because Southern Star did not file suit until February 12,
2019, the evidence supports the trial court’s finding that suit was filed more than four
years after the parties’ dealings ceased. See City of Keller, 168 S.W.3d at 822; Ortiz, 917
S.W.2d at 772. We therefore overrule Southern Star’s challenge as to finding of fact eight.
2. Conclusions of Law
We review conclusions of law de novo. BMC Software Belg., N.V., 83 S.W.3d at
794; see also Dittman v. Cerone, No. 13-11-00196-CV, 2013 WL 5970356, at *4 (Tex.
App.—Corpus Christi–Edinburg Oct. 31, 2013, no pet.) (mem. op. on reh’g). “If the
reviewing court determines a conclusion of law is erroneous, but the trial court rendered
the proper judgment, the erroneous conclusion of law does not require reversal.” BMC
Software Belgium, N.V., 83 S.W.3d at 794.
A suit on sworn account requires proof that the defendant became bound to pay
for goods or services provided. See PennWell Corp. v. Ken Associates, Inc., 123 S.W.3d
756, 765 (Tex. App.—Houston [14th Dis.] 2003, pet. denied). A breach of contract claim
requires proof of a valid contract between the parties. See Doss v. Homecoming Fin.
Network, Inc., 210 S.W.3d 706, 713 (Tex. App.—Corpus Christi–Edinburg, 2006, pet.
denied).
The trial court concluded that Southern Star failed to prove by a preponderance of
the evidence that LFC contracted with Southern Star or became obligated to pay the
account at issue. Those conclusions flow from the trial court’s supported findings that
Descon was responsible for payment under the parties’ joint–check agreement and that
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Descon failed to pay the remaining balance owed to Southern Star.
The trial court concluded that Southern Star failed to prove that LFC contracted
with Southern Star or became obligated to pay the account at issue. Those conclusions
follow directly from the trial court’s supported findings that Descon—not LFC—was
responsible for payment under the parties’ arrangement. Because the findings support
the trial court’s legal conclusions, we conclude that the trial court did not err in entering
conclusions of law nine through twelve. We overrule Southern Star’s challenges to those
conclusions. BMC Software Belgium, N.V., 83 S.W.3d at 794.
In light of our disposition, we need not address Southern Star’s remaining
arguments concerning limitations. See TEX. R. APP. P. 47.1. (“The court of appeals must
hand down a written opinion that is as brief as practicable but that addresses every issue
raised and necessary to final disposition of the appeal.”).
IV. CONCLUSION
We affirm the trial court’s judgment.
L. ARON PEÑA JR.
Justice
Delivered and filed on the
25th day of June, 2026.
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