In a no-answer default, a defaulting defendant admits all facts properly pleaded in the plaintiff's petition except
for the amount of unliquidated damages. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992).
Thus, the plaintiff is only required to prove its claim for unliquidated damages. Id.; see Tex. R. Civ. P. 243.
PROVING DAMAGES & AMOUNT
Damages must be established with reasonable certainty, not mathematical precision. See Qaddura v.
Indo-European Foods, Inc., 141 S.W.3d 882, 890 (Tex. App.-Dallas 2004, pet. denied); State v. Buckner Constr.
Co., 704 S.W.2d 837, 843-44 (Tex. App.-Houston [14th Dist.] 1985, writ ref'd n.r.e.). If the fact of damages has
been established, then the inability to calculate the exact amount of damages is not fatal. See Qaddura, 141
S.W.3d at 890; Anderson, Greenwood & Co. v. Martin, 44 S.W.3d 200, 219 (Tex. App.-Houston [14th Dist.]
2001, pet. denied). If the best available evidence affords a reasonable basis for the jury to calculate damages,
then recovery cannot be denied because the exact amount of damages cannot be ascertained. See Vance v.
My Apartment Steak House of San Antonio, Inc., 677 S.W.2d 480, 484 (Tex. 1984); Buckner, 704 S.W.2d at
O and B Farms, Inc.v. Black, (Tex.App.- Houston [14th Dist.] Oct. 29, 2009)(Yates)
(fraud and civil conspiracy claims award of attorney's fees, exemplary damages reversed)
(contingency fee contract insufficient to establish reasonable attorney's fees)
AFFIRMED AS MODIFIED: Opinion by Justice Brock Yates
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-08-00595-CV O and B Farms, Inc., and B and O Farms, LLC v. Eldon Jay Black, Kevin Lee Donahoo,
Thomas David Horrell, Jr., Charles Richard Weeks, Ronald Russell Swisshelm, and Casey Ross Gray
Appeal from 220th District Court of Hamilton County
Trial Court Judge: Hon. James E. Morgan
O&B does not contest that, based on the jury's breach of contract finding, appellees were damaged. The issue
then is the amount of damages, which could not be calculated precisely because the necessary documents no
longer exist. The formula used to calculate damages is based on estimates of the number of non-agricultural
loads hauled and the fuel surcharge amount per load, and those estimates were based on the available
documents. It was up to the jury to determine how to apply the formula to each driver. See El Paso Natural Gas
Co. v. Minco Oil & Gas Co., 964 S.W.2d 54, 71 (Tex. App.-Amarillo 1997) (affirming damages award, noting that
fact finder could have discredited some of the figures derived from the application of the damages equation),
rev'd on other grounds, 8 S.W.3d 309 (Tex. 1999); see also Anderson, 44 S.W.3d at 219 (stating that jury has
discretion to award damages within the range of evidence presented at trial). O&B does not allege that the
jury's application of the formula actually resulted in a specific improper damages award to any driver based on
their individual circumstances. We conclude the damages formula gave the jury a reasonable basis to calculate
appellees' damages. See Qaddura, 141 S.W.3d at 891 (finding sufficient evidence to support damages award
based on plaintiff's calculation to estimate amount of sales); see also Vance, 677 S.W.2d at 484; Buckner, 704
S.W.2d at 843-44. We overrule O&B's sixth issue.
2900 Smith, Ltd v. Constellation Newenergy, Inc. (Tex.App.- Houston [14th Dist.] Nov. 5, 2009)(Anderson)
(sworn account suit, electricity service, dispute over amount due, findings of facts not filed before judge left
bench, abatement for successor judge to make findings)
AFFIRMED IN PART DISMISSED IN PART: Opinion by Justice Anderson
Before Chief Justice Hedges, Justices Anderson and Seymore
14-08-00061-CV 2900 Smith, Limited and Katie Pham v. Constellation Newenergy, Inc.
Appeal from 190th District Court of Harris County
Trial Court Judge: Jennifer Elrod Walker
Blitz Holding Corp. v. Grant Thornton, LLP (Tex.App. - Houston [1st Dist.] May 8, 2008)(Opinion on rehearing by
Radack) (investments, debt restructuring, promissory note, foreclosure, proof of damages) (Justice Alcala
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justice Jennings
01-04-00627-CV Blitz Holdings Corp., and GMC Corporation, Ltd v. Grant Thornton, LLP, Deloitte & Touche,
LLP, Chamberlain, Hrdlicka, White, Williams & Martin, LLP and C. Thomas Scott
Appeal from 208th District Court of Harris County, according to docket (should be 280th District, though)
Trial Court Judge: Hon. Tony Lindsay
CAUSES OF ACTION ELEMENTS | HOUSTON CASE LAW | TEXAS COURT OF APPEALS OPINIONS
HOUSTON OPINIONS HOME PAGE