Phillip D. Greer, D/B/A Cabana Clean LLC v. Sarah Najera and Heaven Scent Cleaning by Sarah, LLC

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-24-00551-CV

Phillip D. Greer, d/b/a Cabana Clean LLC, Appellant

v.

Sarah Najera and Heaven Scent Cleaning By Sarah, LLC, Appellees

FROM THE 483RD DISTRICT COURT OF HAYS COUNTY
NO. 23-2748, THE HONORABLE SHERRI TIBBE, JUDGE PRESIDING

MEMORANDUM OPINION

Phillip D. Greer, d/b/a Cabana Clean LLC (Greer) alleged claims against

Sarah Najera and Heaven Scent Cleaning By Sarah, LLC (Najera) for misappropriation of trade

secrets, breach of fiduciary duty, and breach of contract. The trial court granted Najera’s motion

for summary judgment and dismissed all claims with prejudice. In separate orders, the trial court

granted Najera’s motions to strike Greer’s summary-judgment response and for $3,885.69 in

attorney’s fees. Greer appeals all three grants. We find the trial court erred in striking Greer’s

response and consider it in this appeal. Because Greer lacked standing to bring the claims against

Najera, and Najera could not therefore satisfy the statutory predicate for the Section 15.51(c) of

the Texas Business and Commerce Code attorney fee award, we vacate the trial court’s orders

granting summary judgment and awarding attorney’s fees and dismiss the case for want

of jurisdiction.
BACKGROUND

Cabana Clean LLC hired Najera as a residential cleaner starting September 7, 2022.

Cabana Clean LLC’s employee handbook allegedly contained non-solicitation, noncompete, and

confidentiality agreements. Najera took a leave of absence on November 7, 2022, and never

returned to work. Najera began working as a residential cleaner on her own, and then formed

“Heaven Scent Cleaning by Sarah, LLC.”

On October 24, 2023, Greer, acting pro se, asserted the claims listed above. Greer

identified himself as an individual plaintiff (doing business as Cabana Clean LLC) and identified

Cabana Clean as a sole proprietorship. Najera filed a general denial, explaining she had never

signed non-solicitation, noncompete, and confidentiality agreements with Cabana Clean LLC; she

did not train with the company because she already knew how to clean houses; she “never

purposefully solicited any clientele of Cabana Clean” or used its trade secrets or confidential

information; and she is “just a mom with 5 children trying to provide.” She requested that, if the

case were to continue, she be awarded attorney’s fees. She then hired counsel, who entered an

appearance and made written discovery requests that were served on Greer.

Greer failed to respond to the written discovery requests, and Najera filed a motion

for summary judgment. Najera provided evidence that Greer and two other managing members

formed Cabana Clean LLC; Cabana Clean LLC hired and paid Najera but Najera did not enter into

a non-compete agreement with Cabana Clean LLC; and the Texas Secretary of State forfeited “the

charter, certificate or registration” of Cabana Clean LLC on March 10, 2023, pursuant to

Section 171.309 of the Texas Tax Code.

Najera argued that Greer filed the suit on behalf of Cabana Clean LLC and that

Cabana Clean LLC lacks capacity to bring suit because, under the Tax Code, if corporate privileges

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of a corporation are forfeited under Subchapter 171, the corporation loses the right to sue or defend

in court in Texas (citing Tex. Tax Code § 171.252). Alternatively, Najera argued that if Cabana

Clean LLC has the capacity to bring suit, Cabana Clean LLC must be represented by a licensed

attorney because a corporation may be represented only by a licensed attorney (citing Kunstoplast

of America, Inc. v. Formosa Plastics Corp., USA, 937 S.W.2d 455, 456 (1996)), and because Greer

is not an attorney, his pro se filings in the suit constitute the unauthorized practice of law. Finally,

she argued the claims fail as a matter of law because Najera failed to produce a copy of an

agreement between Cabana Clean LLC and Najera and, in any event, Greer was not a party to any

agreement that does exist. Najera did not file a verified plea under Rule 93(2) “[t]hat the plaintiff

is not entitled to recover in the capacity in which he sues[.]” Tex. R. Civ. P. 93(2).

Greer filed a response, stating that the suit was filed on “behalf of himself” and that

he never purported to represent or sue on behalf of Cabana Clean LLC. See Prof'l Res. Plus

v. Univ. of Tex., Austin, No. 03-10-00524-CV, 2011 WL 749352, at *1 n.1 (Tex. App.—Austin

Mar. 4, 2011, no pet.) (mem. op.) (“While a corporate entity may not appear pro se, a sole

proprietorship is not a distinct legal entity from its sole proprietor, and therefore may appear pro se

through its sole proprietor.”). And he argued he has standing either because (1) he is allowed to

file a derivative action on behalf of Cabana Clean LLC because he was a member of the LLC at

the time that the alleged acts harming it took place (citing Tex. Bus. Orgs. Code § 101.452); (2) “all

of the rights regarding these claims were . . . transferred to him when the LLC was dissolved”; or

(3) “he has been assigned all rights to these causes of action from Cabana Clean, LLC.” Greer

alleged no personal cause of action nor any injury sustained distinct from injury to the LLC. He

also argued that the written agreement is contained within the employee handbook, which he said

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he had provided in a prior email to Najera’s counsel. Greer attached the Cabana Clean Employee

Handbook and his own affidavit attesting to the above.

Najera filed a motion to strike the response because a non-attorney cannot respond

on behalf of an LLC and to disregard the attachments to the response because Greer had failed to

respond to discovery requests and so had waived responses under Texas Rule of Civil Procedure

193.6. The trial court held a hearing on the motion to strike and the motion for summary judgment.

Greer, who had filed a response to the motion to strike, did not appear. Najera argued that Greer

is not a licensed attorney and cannot represent “the legal entity under which he sues” and Greer

“never responded” to discovery and his “responses to discovery have been waived now.” The trial

court stated, “Okay” and “All right.” Because Najera did not present evidence to prove attorney’s

fees, the trial court did not grant them at the hearing. Najera thereafter filed a motion for attorney’s

fees under Section 15.51(c) of the Texas Business and Commerce Code or Texas Rule of Civil

Procedure 91a.7 and provided the trial court with evidence including the affidavit of counsel and

billing records. Greer filed a response, asserting Najera was ineligible for attorney’s fees because

she had neither proved the requisite conditions to satisfy Section 15.51, nor filed a Rule 91a motion

to dismiss. As stated above, the trial court granted the motion for summary judgment (dismissing

Greer’s claims against Najera with prejudice), the motion to strike Greer’s summary judgment

response (and to disregard the attachments to the response), and the motion for attorney’s fees.

This appeal followed.

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ANALYSIS

Strike of Response

Greer argues that the trial court incorrectly struck his timely filed response to

Najera’s motion for summary judgment because he, an individual doing business as Cabana Clean

LLC, not Cabana Clean LLC, is the plaintiff, and he is entitled to represent himself. Greer also

argues that the trial court erred in striking the response because no rule or case law allows a trial

court to strike a timely summary-judgment response because of some perceived or actual

substantive inadequacy, citing San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 329 (Tex.

App.—Houston [14th Dist.] 2005, no pet.).

Texas Rule of Civil Procedure 7 provides that any party to a suit may appear and

prosecute or defend their rights either in person or by an attorney of the court. Tex. R. Civ. P. 7.

While this rule preserves the right of individuals to represent themselves pro se, Texas courts have

consistently interpreted it to permit self-representation only to litigate rights on the individual’s

own behalf—not to litigate rights in a representative capacity. Kunstoplast, 937 S.W.2d at 456.

A non-attorney’s attempt to appear for an LLC or present its case has no legal effect. Sherman

v. Boston, 486 S.W.3d 88, 96 (Tex. App.—Houston [14th Dist.] 2016, pet. denied).

As noted above, Greer filed this suit on October 24, 2023. On March 10, 2023, the

Texas Secretary of State, pursuant to Section 171.309 of the Texas Tax Code, forfeited the charter

of Cabana Clean LLC. If the corporate privileges of a corporation are forfeited under subchapter

171, “the corporation shall be denied the right to sue or defend in a court of this state[.]” 1 Tex.

1 Tex. Bus. Orgs. Code § 11.356(a)(1) provides for limited survival after termination under
the business organizations or tax code. “Notwithstanding the termination of a domestic filing
entity under this code or the Tax Code, the terminated filing entity continues in existence until the
third anniversary of the effective date of the entity’s termination only for purposes of:
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Tax Code §§ 171.252, .2515; see Transamerica Corp v. Braes Woods Condo Ass’n, Inc.,

580 S.W.3d 733, 736 (Tex. App.—Houston [14th Dist.] 2019, no pet.). Because Greer did not

purport to represent Cabana Clean, LLC, he preserved the right to represent himself pro se, and

the trial court abused its discretion in striking his response. Tex. R. Civ. P. 7. The trial court,

however, properly disregarded the attached evidence in light of Rule 193.6.

Under that rule, a party who fails to make a discovery response, including a required

disclosure, in a timely manner may not introduce in evidence the material or information that was

not timely disclosed unless the court finds that: (1) there was good cause for the failure to timely

make the discovery response; or (2) the failure to timely make the discovery response will not

unfairly surprise or unfairly prejudice the other parties. Tex. R. Civ. P. 193.6. The record reflects

that Najera served written discovery requests to Cabana Clean on or about May 2, 2024, that

discovery responses were due on June 3, 2024, and Cabana Clean failed to respond. After attempts

to confer on June 4, 7, 10, and 11, Cabana Clean had still not responded to written discovery

requests. We therefore consider the improperly struck response, but not the attached evidence, as

part of our de novo review of the trial court’s ruling on Najera’s motion for summary judgment.

See Esty v. Beal Bank S.S.B., 298 S.W.3d 280, 298 (Tex. App.—Dallas 2009, no pet.) (considering

wrongfully struck response in summary judgment review); Mid Continent Lift & Equip., LLC

v. J. McNeill Pilot Car Serv., 537 S.W.3d 660, 675 (Tex. App.—Austin 2017, no pet.) (concluding

trial court did not abuse its discretion in excluding evidence under Tex. R. Civ. P. 193.6).

(1) prosecuting or defending in the terminated filing entity's name an action or proceeding brought
by or against the terminated entity[.]” Tex. Bus. Orgs. Code § 11.356(a)(1). The previous
version of the statute, covering pre-September 1, 2023 terminations, did not apply to terminations
under the Tax Code. See Liss v. Cushman & Wakefield of Tex., Inc., No. 01-23-00481-CV,
2025 WL 1799618, at *12 (Tex. App.—Houston [1st Dist.] June 30, 2025, no pet.) (mem. op.).
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Summary Judgment

Greer argues here, as he had in his response to the summary judgment motion, that

the suit was filed on “behalf of himself” and he does not have to be an attorney to bring the claims.

And he argues he has standing either because (1) he is allowed to file a derivative action on behalf

of Cabana Clean LLC because he was a member of the LLC at the time that the alleged acts

harming it took place (citing Tex. Bus. Orgs. Code § 101.452) or (2) the LLC transferred or

assigned all its rights to him. Regarding the merits of the claims, Greer argues that language in

the employee handbook, turned over in discovery, contains the agreements underpinning

his claims.

We review the trial court’s summary judgment de novo. Valence Operating Co.

v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When reviewing a summary judgment, we take as

true all evidence favorable to the non-movant, and we resolve any doubts and indulge every

reasonable inference in the non-movant’s favor, unless a reasonable factfinder could not. City of

Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). Summary judgment is proper when there are

no disputed issues of material fact and the movant is entitled to judgment as a matter of law.

Tex. R. Civ. P. 166a(c). A defendant who conclusively negates at least one of the essential

elements of each of the plaintiff’s causes of action or who conclusively establishes all the elements

of an affirmative defense is entitled to summary judgment. Cathey v. Booth, 900 S.W.2d 339, 341

(Tex. 1995).

As a prerequisite to subject-matter jurisdiction, standing can be raised in a motion

for summary judgment, Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000), or

for the first time on appeal. Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477, 484 (Tex. 2018).

Standing requires “a real controversy between the parties” that “will be actually determined by the

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judicial declaration sought.” Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005).

“Without breach of a legal right belonging to the plaintiff no cause of action can accrue to his

benefit.” Nobles v. Marcus, 533 S.W.2d 923, 927 (Tex. 1976).

A determination of standing focuses on whether a party has a “justiciable interest”

in the outcome of the lawsuit, such as when it is personally aggrieved or has an enforceable right

or interest. Lovato, 171 S.W.3d at 849. It is the nature of the wrong, whether directed against the

entity only or against the individual stakeholder, and not the existence of injury, that

determines who may sue. Siddiqui v. Fancy Bites, LLC, 504 S.W.3d 349, 360 (Tex. App.—

Houston [14th Dist.] 2016, pet. denied). Typically, a claim-by-claim analysis is necessary to

ensure that a particular plaintiff has standing to bring each of his claims. Heckman v. Williamson

County, 369 S.W.3d 137, 153 (Tex. 2012).

An individual member of an LLC has no property interest in LLC assets. See Tex.

Bus. Orgs. Code § 101.106(b) (“A member of a limited liability company or an assignee of a

membership interest in a limited liability company does not have an interest in any specific

property of the company.”). An LLC is a legal entity separate from its members, and a member

lacks standing to assert claims individually where the cause of action belongs to the company.

Sherman, 486 S.W.3d at 94. In Sherman, the Fourteenth Court of Appeals reversed a judgment in

favor of an LLC’s sole member who had brought conversion claims individually on behalf of the

LLC, because only the LLC—not the member—had the standing to assert claims belonging to the

entity. Id. at 95. The First Court of Appeals applied this same principle in a case like this one,

when a member tried to sue individually on a contract entered into by the LLC, which itself

lacked capacity to sue due to charter forfeiture. Liss v. Cushman & Wakefield of Tex., Inc.,

No. 01-23-00481-CV, 2025 WL 1799618 (Tex. App.—Houston [1st Dist.] June 30, 2025, no pet.)

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(mem. op.). The court held that because “the undisputed summary judgment evidence established

that the Jameses were not parties to the contract between C&W and Bay Area, the trial court

properly granted summary judgment in favor of appellees on the Jameses’ breach of contract

claim.” Id. at *17. The same is true here.

To prevail on a claim for violation of the Texas Uniform Trade Secrets Act, a

plaintiff must prove (1) ownership of a trade secret; (2) misappropriation of the trade secret; and

(3) an injury to the plaintiff or unjust enrichment to the defendant. Tex. Civ. Prac. & Rem. Code

§ 134A.002–.004. To prevail on a claim for breach of fiduciary duty, a plaintiff must prove (1) the

existence of a fiduciary duty, (2) breach of the duty, (3) causation, and (4) damages. First United

Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017). And to prevail on

a breach-of-contract claim, a plaintiff must establish that (1) a valid contract exists; (2) the plaintiff

performed or tendered performance as contractually required; (3) the defendant breached the

contract by failing to perform or tender performance as contractually required; and (4) the plaintiff

sustained damages due to the breach. Pathfinder Oil & Gas, Inc. v. Great W. Drilling, Ltd.,

574 S.W.3d 882, 890 (Tex. 2019).

But Greer presented no competent evidence that he, rather than Cabana Clean LLC,

owned a trade secret; that Najera owed him, much less Cabana Clean LLC, a fiduciary duty; or

that he, rather than Cabana Clean LLC was a party to any valid contract with Najera. Tex. Bus.

Orgs. Code § 101.106(b). As discussed above, Cabana Clean LLC did not have capacity to sue

Najera. And Greer cannot now assert Cabana Clean LLC’s claims for it. In re UMTH Gen.

Services, L.P., 725 S.W.3d 424, 426, 429-30 (Tex. 2025) (concluding that shareholders could only

pursue claims for injury to entity via derivative action, and although shareholders had

“constitutional standing” to sue for their alleged financial losses, “[a]bsent both a personal cause

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of action and an individual injury” separate from harm to the corporate entity, the shareholders

lacked capacity to bring claims that the corporate entity owned); Sherman, 486 S.W.3d at 94-95;

Liss, 2025 WL 1799618, *14 (recognizing rule holding that stakeholder in business organization

has constitutional standing to sue for alleged loss in value of its interest in organization and finding

it “inapposite because the Jameses are not bringing individual claims for lost value in the company,

rather, they are attempting to assert Bay Area’s claims”); Hartsfield v. Hartsfield Cabinet LLC,

No. 05-21-00896-CV, 2022 WL 4103097, at *5 (Tex. App.—Dallas Sept. 8, 2022, no pet.)

(mem. op.) (concluding summary judgment was improper partly because there was no evidence

concerning whether LLC, or person who was “agent and owner of” that LLC, or both of them

allegedly suffered damage).

Greer nevertheless argues that he has standing to raise the claims derivatively or as

a successor in interest or assignee. A derivative proceeding is a civil suit in the right of a domestic

corporation. Tex. Bus. Orgs. Code § 101.451. The statute allows a shareholder of a closely held

corporation to bring a derivative proceeding in the right of the corporation but requires present

member status from the “derivative proceeding” it codifies. In re LoneStar Logo & Signs, LLC,

552 S.W.3d 342, 350 (Tex. App.—Austin 2018, no pet.). Greer, again, asserts he is a sole

proprietor not a present member of the LLC. See Ideal Lease Serv., Inc. v. Amoco Prod. Co., Inc.,

662 S.W.2d 951, 952 (Tex. 1983) (“a sole proprietorship has a legal existence only in the identity

of the sole proprietor”).

Simply operating as a sole proprietor does not transform a former member into a

true successor in interest capable of asserting the entity’s claims in his own name. A cause

belonging to the LLC can reach a former member through an affirmative act of distribution, but

only after all liabilities have been satisfied. Tex. Bus. Orgs. Code § 11.053. That is, the LLC must

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first apply its property to discharge all its liabilities and obligations. Id. Only after all liabilities

have been discharged or adequately provided for does the statute permit the LLC to distribute “the

remainder of its property, in cash or in kind, to the domestic entity’s owners according to their

respective rights and interests.” Id. An unasserted cause of action constitutes property of the LLC

that can be distributed in kind to members through this affirmative statutory process, not

automatically or by operation of law. Although Greer filed an affidavit asserting such a process,

the trial court properly disregarded it based on Greer’s failure to timely provide it as a discovery

response. See Tex. R. Civ. P. 193.6. See Fort Brown Villas III Condo. Ass’n, Inc. v. Gillenwater,

285 S.W.3d 879, 881-82 (Tex. 2009) (Rule 193.6 applies in summary judgment proceeding).

Thus, there was no competent evidence before the trial court that the LLC’s rights and interests

were distributed to its members. The same is true for evidence of the alleged assignment of the

causes of action.

Because the causes Greer alleged belonged to the LLC, and Greer lacked standing

to bring them, the trial court had no jurisdiction over the claims. DaimlerChrysler Corp. v. Inman,

252 S.W.3d 299, 304 (Tex. 2008). Greer could have avoided this result by either reviving the

LLC’s corporate privileges and hiring an attorney to prosecute its claims or timely presenting

evidence of the distribution of the right to sue, but he did not. See Tex. Tax Code § 171.312,

Tex. Bus. Orgs. Code § 11.053.

As it stands, the trial court could not dismiss Greer’s claims with prejudice because

that is a final determination on the merits. See Star Houston, Inc. v. Texas Dep’t of Transp.,

957 S.W.2d 102, 111–12 (Tex. App.—Austin 1997, pet. denied). We therefore vacate the trial

court’s order granting summary judgment and dismissing Greer’s claims with prejudice. See Texas

Right to Life v. Van Stean, 702 S.W.3d 348, 357 (Tex. 2024).

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Attorney’s Fees

Greer does not challenge the amount of the award of attorney’s fees; he challenges

Najera’s entitlement to the award. Greer argues here, as he had to the trial court, that the trial court

could not award attorney’s fees under either the Texas Business and Commerce Code or the Texas

Rules of Civil Procedure. The availability of attorney’s fees under a particular statute is a question

of law for the court. Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999). A prevailing

party cannot recover attorney’s fees from an opposing party unless permitted by statute or by

contract between the parties. Id. at 95. We agree with Greer that Najera was not entitled to

attorney’s fees under Rule 91a. “Rule 91a provides that a party who files a motion to dismiss is

due attorney’s fees when it prevails ‘on the motion’—not on a later summary judgment motion

asserting there is no genuine issue as to any material fact.” ConocoPhillips Co. v. Koopmann,

547 S.W.3d 858, 880 (Tex. 2018). Nor can we uphold the trial court’s award as meeting the

conditions for attorney fees under Section 15.51(c) of the Texas Business and Commerce Code.

That statute provides:

If the primary purpose of the agreement to which the covenant is ancillary is to
obligate the promisor to render personal services, the promisor establishes that the
promisee knew at the time of the execution of the agreement that the covenant did
not contain limitations as to time, geographical area, and scope of activity to be
restrained that were reasonable and the limitations imposed a greater restraint than
necessary to protect the goodwill or other business interest of the promisee, and the
promisee sought to enforce the covenant to a greater extent than was necessary to
protect the goodwill or other business interest of the promisee, the court may award
the promisor the costs, including reasonable attorney's fees, actually and reasonably
incurred by the promisor in defending the action to enforce the covenant.

Tex. Bus. & Com. Code § 15.51(c). Thus, as a predicate to an award of attorney fees under this

section, Najera was obligated to prove that (1) Greer knew at the time the employment agreement

was executed that the covenant did not contain limitations on time, geographical area, and scope
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of activity to be restrained that were reasonable and the limitations imposed a greater restraint than

necessary to protect plaintiff’s goodwill or other business interest, and (2) Greer sought to enforce

the covenant to a greater extent than was necessary to protect its goodwill or other business interest.

See Boucher v. Thacker, 609 S.W.3d 206, 208 n.7 (Tex. App.—Texarkana 2020, no pet.). Najera,

instead, disavowed the existence of an agreement. Moreover, because Greer lacked standing to

bring the enforcement action, the litigation never qualified as a cognizable “action to enforce the

covenant” by a promisee entitled to enforce it—meaning the fundamental statutory predicate for

the subsection 15.51(c) fee award was never satisfied. See Franlink, Inc. v. GJMS Unlimited, Inc.,

401 S.W.3d 705, 711 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (noting subsection (c)

provides for award of attorney’s fees only where defendant satisfies certain evidentiary

requirements in defending against enforcement of an unreasonable covenant). We therefore vacate

the award for attorney’s fees.

CONCLUSION

We vacate the trial court’s orders granting summary judgment and awarding

attorney’s fees and dismiss the case for want of jurisdiction.

__________________________________________
Chari L. Kelly, Justice

Before Chief Justice Byrne, Justices Kelly and Ellis

Vacated and Dismissed for Want of Jurisdiction

Filed: June 12, 2026

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