law-default-judgment-proof-of-damages sufficiency of evidence to establish damages | default judgment cases
Sufficiency of the Proof of Damages in Default Judgement Process
In his third point of error, Fellows contends that the trial court erred by awarding unliquidated damages
without a hearing.
In a no-answer default judgment, the failure to file an answer operates as an admission of the material facts
alleged in the petition, except as to unliquidated damages. Heine, 835 S.W.2d at 83. If the damages being
claimed are unliquidated, the court rendering a default judgment must hear evidence as to damages. Tex. R.
Civ. P. 243; Heine, 835 S.W.2d at 83. It is error for the trial court to fail to require proof of unliquidated
damages before rendering a default judgment for such damages. See Jones v. Andrews, 873 S.W.2d 102,
107 (Tex. App.--Dallas 1994, no writ).
A claim for damages is liquidated if the amount of damages can be accurately calculated by the court from the
factual, as opposed to the conclusory, allegations in the petition and written instruments. See Novosad v.
Cunningham, 38 S.W.3d 767, 773 (Tex. App.--Houston [14th Dist.] 2001, no pet.). When a claim is liquidated
and proven by written instrument, the trial court must assess damages and render final judgment unless the
defendant demands and is entitled to a trial by jury. See Tex.R. Civ. P. 241.
Here, Adams alleges in his petition that Fellows breached the Contract because he failed to return $15,800 in
cash and "computer equipment" valued at $38,800. Adams attached, as support for his allegations, a copy of
the Contract and the receipt Fellows signed promising to return the computer equipment. The Contract
reflects that the parties agreed that Fellows's $12,500 would come out of "the watches and funds in the
approximate amount of $67,000" in the custody of the federal government, of which Fellows was to obtain
release.
In addition, Adams attached a receipt from his attorney at the time, Ron Johnson, acknowledging that Fellows
had returned certain jewelry and cash to Adams's wife. The receipt bears the signatures of Johnson and
Adams's wife. The receipt also reflects that "Fellows agrees to provide remaining computer equipment within
10 days," and bears Fellows's signature. The receipt does not mention the $15,800 in cash allegedly
outstanding. Adams did not offer any facts as to the basis of the valuation of the computer equipment at issue.
We conclude that Adams failed to provide any factual bases to support his allegation that $15,800 remains
outstanding from what was recovered by Fellows from federal authorities or that $38,800 is the value of the
computer equipment at issue. (3) Hence, Adams's claim for damages is unliquidated because the amount of
damages cannot be accurately calculated by the court from the factual allegations in the petition and written
instruments. See Novosad, 38 S.W.3d at 773. Documents that represent merely conclusory allegations will
not support an amount awarded for unliquidated damages. See id.; Jones, 873 S.W.2d at 107. Accordingly,
we hold that Adams failed to support the award for damages.
Accordingly, we sustain Fellows's third point of error.
Fellows v. Adams (Tex.App.- Houston [1st Dist.] Oct. 18, 2007)(Higley)(default judgment, service by certified
mail, insufficient proof of unliquidated damages)