Kenneth David Hudson, Jr. and Tasha N. Hudson v. Morris Banda

Opinion filed August 7, 2025

In The

Eleventh Court of Appeals
__________

No. 11-23-00181-CV
__________

KENNETH DAVID HUDSON, JR. AND TASHA N. HUDSON,
Appellants
V.
MORRIS BANDA, Appellee

On Appeal from the 259th District Court
Jones County, Texas
Trial Court Cause No. 024840

MEMORANDUM OPINION
Appellants Kenneth David Hudson, Jr. and Tasha N. Hudson appeal from the
trial court’s order granting Appellee Morris Banda’s amended motion for summary
judgment. Appellants assert in three issues that (1) the trial court erred by denying
their motion for new trial, (2) the trial court erred by granting Appellee’s no-
evidence motion for summary judgment, and (3) the trial court erred by granting
Appellee’s traditional motion for summary judgment. We affirm.
Background Facts
This case involves a dispute over ownership of real property. On March 9,
2017, Ollie L. Sutton and Billie C. Sutton conveyed to Appellants approximately
179 acres of land contiguous to Appellee’s land. Appellants obtained a survey of
the property at the time of the purchase. Believing that Appellee claimed ownership
to approximately eight acres of the property that they purchased, Appellants brought
a cause of action for trespass to try title against Appellee on October 10, 2019.
Appellee answered and asserted counterclaims for trespass to try title, quiet title,
and, alternatively, trespass to try title by adverse possession.
On November 1, 2021, Appellee filed a traditional motion for summary
judgment. In the motion, Appellee asserted that there had been an error in a previous
survey that incorrectly added four acres to the tract of land eventually purchased by
Appellants. Appellee supported this assertion with an expert report from a surveyor.
Appellee requested the trial court to quiet title to the disputed tract in his favor.
The trial court signed an order setting a hearing on Appellee’s initial motion
for summary judgment. Appellants subsequently filed a motion for continuance for
the hearing, which the trial court granted. Appellants then filed a motion to strike
Appellee’s summary judgment evidence and filed a response to the motion for
summary judgment. Appellants contended that there was a genuine issue of material
fact as to the ownership of the disputed property.
Appellee filed an amended motion for summary judgment on March 13, 2023,
which the trial court set for a hearing on April 28, 2023. Appellee added a no-
evidence ground to his amended motion for summary judgment. Appellants did not

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respond to the amended motion for summary judgment, and they did not appear at
the hearing.
The trial court granted Appellee’s amended motion for summary judgment.
Specifically, the trial court granted Appellee’s no-evidence motion for summary
judgment as to Appellants’ trespass-to-try-title claim, and it granted Appellee’s
traditional motion for summary judgment on Appellee’s counterclaims for quiet title
and trespass to try title. The trial court decreed in its order that there was “an error
in the metes and bounds description within [Appellants’] chain of title that
erroneously expand[ed] their property by approximately 4 acres (“Disputed
Property”), thus encroaching on [Appellee’s] property.” The trial court ordered that
Appellee was vested with title and possession of the disputed property and it gave a
detailed description of the property in its summary judgment order.
Appellants filed a motion for new trial wherein they asserted that trial counsel
inadvertently failed to respond to the motion for summary judgment and appear at
the hearing. Appellants’ counsel stated in the motion that his co-counsel’s e-mail
address was “incorrectly entered in the electronic filings,” but he acknowledged that
his own e-mail address was correctly entered. Counsel further stated in the motion
that he did not “download recent filings incorrectly thinking they would be
downloaded, etc., from [co-counsel’s] email address in that they share a legal
assistant.” Appellants further argued that they had a meritorious defense, and they
could “raise issues of material fact that would preclude the entry of a [s]ummary
[j]udgment.” However, Appellants’ motion for new trial was unsworn and it was
not supported by any affidavits. Appellants’ motion for new trial was overruled by
operation of law. See TEX. R. CIV. P. 329b(c).

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Analysis
In their first issue, Appellants assert that the trial court erred by denying their
motion for new trial. We review a trial court’s decision to deny a motion for new
trial under an abuse-of-discretion standard. Dolgencorp of Tex., Inc. v. Lerma, 288
S.W.3d 922, 926 (Tex. 2009) (per curiam). A trial court abuses its discretion when
its action is arbitrary, unreasonable, or “without reference to any guiding rules and
principles.” Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.
1985).
Appellants contend that the trial court’s order granting Appellee’s motion for
summary judgment was entered by default and should be set aside. They assert that
they were entitled to a new trial under the standards set forth in Craddock v. Sunshine
Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939).
In the case of a default judgment, a trial court abuses its discretion by not
granting a new trial when the defaulting party establishes all three elements of the
Craddock test. Dolgencorp, 288 S.W.3d at 925. Under Craddock, the trial court
should grant a new trial when the motion (1) shows the failure of the defendant to
answer before judgment was not intentional, or the result of conscious indifference
on his part, but was due to mistake or an accident; (2) sets up a meritorious defense;
and (3) is filed at a time when the granting thereof will occasion no delay or
otherwise work an injustice to the plaintiff. Id. at 925–26 (“When a defaulting party
moving for new trial meets all three elements of the Craddock test, then a trial court
abuses its discretion if it fails to grant a new trial.” (citing Old Republic Ins. Co. v.
Scott, 873 S.W.2d 381, 382 (Tex. 1994))). The Craddock test has been applied when
a judgment is entered in a “default” summary judgment context. Weech v. Baptist
Health Sys., 392 S.W.3d 821, 825 (Tex. App.—San Antonio 2012, no pet.).

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Appellants first contend that their failure to respond to the amended motion
for summary judgment was not intentional or the result of conscious indifference but
rather was a mistake or accident. Appellants asserted in their motion for new trial
that one attorney did not receive the filings because of an incorrect e-mail address
and that the other attorney did not download the filings mistakenly believing that the
legal assistant had done so. However, Appellants’ motion for new trial is unverified,
unsworn, and unsupported by affidavits or other admissible evidence. Under
Craddock, Appellants “had to (1) allege facts and attach affidavits to a verified
motion to set aside the default judgment that would meet the three Craddock
requirements or (2) present evidence at the hearing on [their] motion that met those
requirements.”1 See Pickell v. Guar. Nat. Life Ins. Co., 917 S.W.2d 439, 443 (Tex.
App.—Houston [14th Dist.] 1996, no writ) (first citing Craddock, 133 S.W.2d 126;
and then citing Ivy v. Carrell, 407 S.W.2d 212, 214–15 (Tex. 1966)). Unverified
factual allegations in a defaulting party’s motion for new trial cannot be used to
establish that the failure to file an answer was not intentional or the result of
conscious indifference. Wiseman v. Levinthal, 821 S.W. 2d 439, 442 (Tex. App.—
Houston [1st Dist. 1991, no writ).
Appellants further contend that they have a meritorious defense and that they
can raise issues of material fact that would preclude summary judgment. In Weech,
the Fourth Court of Appeals modified the Craddock test in the summary judgment
context to require the defaulting party in a motion for new trial to set up a meritorious
defense by alleging facts and bringing forth summary judgment proof sufficient to
raise a genuine issue of material fact on the issues the opponent raised in its
traditional and no-evidence summary judgment motion. Weech, 392 S.W.3d at 825.
Other courts have adopted this modified approach to applying Craddock in the

The record does not indicate that a hearing occurred on Appellants’ motion for new trial. As noted
1

previously, the motion was overruled by operation of law.
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summary judgment context. See Garcia v. Tex. Integrity Homes, LLC, No. 05-24-
00049-CV, 2025 WL 1547740, at *2 (Tex. App.—Dallas May 30, 2025, no pet.)
(mem. op.); Varady v. Gyorfi, No. 09-15-00237-CV, 2016 WL 1468859, at *5 (Tex.
App.—Beaumont Apr. 14, 2016, no pet.) (mem. op.)). We agree with the reasoning
expressed by the court in Weech that a defaulting party seeking relief under
Craddock to a summary judgment must present summary judgment proof with its
motion for new trial to raise a material issue of fact. 392 S.W.3d at 825–26.
The motion for new trial must allege facts which would constitute a defense
to the cause of action and must be supported by affidavits or other evidence. See
Ivy, 407 S.W.2d at 214. Appellants unverified motion for new trial did not allege
facts or bring forth any summary judgment proof. See Weech, 392 S.W.3d at 825–
26. The motion merely stated that they “can raise issues of material fact.”
Because Appellants did not establish the first two elements of the Craddock
test with sufficient proof, the trial court did not abuse its discretion in denying their
motion for new trial. We overrule Appellants’ first issue.
In their second and third issues, Appellants assert that the trial court erred by
granting Appellee’s no-evidence and traditional motion for summary judgment. The
trial court granted Appellee’s no-evidence motion for summary judgment as to
Appellants’ trespass-to-try-title claim and granted Appellee’s traditional motion for
summary judgment as to Appellee’s counterclaims for quiet title and trespass to try
title.
We review the trial court’s grant of summary judgment de novo. Lujan v.
Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018) (citing Provident Life & Accident Ins.
Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)). Generally, if a party moves for
summary judgment on both traditional and no-evidence grounds, we first consider

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the no-evidence motion. Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520
S.W.3d 39, 45 (Tex. 2017).
After an adequate time for discovery, a party may move for summary
judgment on the ground that there is no evidence of one or more essential elements
of a claim or defense on which an adverse party would have the burden of proof
at trial. TEX. R. CIV. P. 166a(i). We review a no-evidence motion for summary
judgment under the same legal sufficiency standard as a directed verdict.
Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). Under this
standard, the nonmovant has the burden to produce more than a scintilla of evidence
to support each challenged element of its claims. Id. Evidence is no more than a
scintilla if it is “so weak as to do no more than create a mere surmise or suspicion”
of a fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting
Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).
A party moving for traditional summary judgment bears the burden of proving
that there is no genuine issue of material fact and that it is entitled to judgment as a
matter of law. TEX. R. CIV. P. 166a(c); Nassar v. Liberty Mut. Fire Ins. Co., 508
S.W.3d 254, 257 (Tex. 2017). To be entitled to a traditional summary judgment, a
defendant must conclusively negate at least one essential element of the cause of
action being asserted or conclusively establish each element of an affirmative
defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).
Evidence is conclusive only if reasonable people could not differ in their
conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). If the
movant initially establishes a right to summary judgment on the issues expressly
presented in the motion, then the burden shifts to the nonmovant to present to the
trial court any issues or evidence that would preclude summary judgment. See City
of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979).

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Appellants contend that Appellee did not specifically state the element or
elements that formed the basis for his no-evidence motion. The plaintiff in a
trespass-to-try-title action is required to prove its title by proving (1) a regular chain
of conveyances from the sovereign to the plaintiff, (2) a superior title to that of the
defendant out of a common source, (3) title by limitations, or (4) prior possession
that has not been abandoned. Brumley v. McDuff, 616 S.W.3d 826, 832 (Tex. 2021);
Rogers v. Ricane Enters., Inc., 884 S.W.2d 763, 768 (Tex. 1994). A plaintiff in a
trespass-to-try-title action must “prevail on the superiority of his title, not on the
weakness of a defendant’s title.” Martin v. Amerman, 133 S.W.3d 262, 265 (Tex.
2004) (citing Land v. Turner, 377 S.W.2d 181, 183 (Tex. 1964)).
With reference to his no-evidence motion for summary judgment, Appellee
stated in his amended motion that Appellants’ property was erroneously enlarged by
four acres due to an error on the metes and bounds legal description. Appellee
further stated that, because prior warranty deeds contained an erroneous legal
description, Appellants’ claim to title to the disputed property is invalid and they
have “no evidence of their entitlement to the entire 179.88 acres of land through a
regular chain of conveyance.” Therefore, Appellee specifically stated the element
for which he formed the basis for his no-evidence motion—that Appellants had no
evidence of superior title. See Martin, 133 S.W.3d at 265.
Without a timely response, a trial court must grant a no-evidence motion
for summary judgment that meets the requirements of Rule 166a(i). TEX. R.
CIV. P. 166a(i); Landers v. State Farm Lloyds, 257 S.W.3d 740, 746 (Tex. App.—
Houston [1st Dist.] 2008, no pet.). “If a nonmovant wishes to assert that, based on
the evidence in the record, a fact issue exists to defeat a no-evidence motion for
summary judgment, he must timely file a response to the motion raising this issue
before the trial court.” Landers, 257 S.W.3d at 746 (citing TEX. R. CIV. P. 166a(i)).

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Here, Appellants did not file a response to the no-evidence motion for summary
judgment. Further, Appellants did not submit any summary judgment evidence in
response to Appellee’s original motion for summary judgment. Because Appellants
did not file a response to the no-evidence motion for summary judgment, the trial
court did not err by granting it. We overrule Appellants’ second issue.
Moreover, the trial court did not err in granting Appellee’s traditional motion
for summary judgment. In his amended motion for summary judgment, Appellee
specifically detailed both his chain of title and Appellants’ chain of title to the
common source. Appellee included as summary judgment evidence the prior
warranty deeds on the property, and he noted that there was an erroneous legal
description enlarging the property eventually purchased by Appellants. Appellee
included as summary judgment evidence the expert report of Paul Kwan, who
concluded that a prior survey contained an error enlarging the property purchased
by Appellants.2 Kwan specifically identified an error in a prior legal description in
Appellants’ chain of title that caused their property to be enlarged. Because of the
error, Security State Bank erroneously conveyed a 179-acre tract to the Suttons when
the bank only owned a 175-acre tract. The Suttons then erroneously conveyed a
179-acre tract to Appellants rather than the correct 175-acre tract. The four acres
encroached on Appellee’s 13.12-acre tract that he obtained from John H. Hancock
in 2011. Thus, Appellee proved his counterclaims to ownership of the disputed
property by competent summary judgment evidence.
Because Appellee established his right to traditional summary judgment, the
burden shifted to Appellants to present to the trial court any issues or evidence that

2
Appellants contend that “Kwan’s report does not qualify him as an expert in chain of title.”
However, Kwan is a registered professional land surveyor, and as such, he was qualified to evaluate prior
surveys and opine on erroneous surveys and property descriptions.

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would preclude summary judgment. See Clear Creek, 589 S.W.2d at 678–79.
Appellants did not present any summary judgment evidence as to ownership of the
disputed property that raised a material fact issue that would preclude summary
judgment. Therefore, the trial court did not err in granting Appellee’s traditional
motion for summary judgment. We overrule Appellants’ third issue.
This Court’s Ruling
We affirm the trial court’s order.

JOHN M. BAILEY
CHIEF JUSTICE

August 7, 2025

Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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