Opinion issued October = 18,=20 2007
For=20 The
KERRY G. =
FELLOWS,=20
Appellant RASHEED =
ADAMS,=20
Appellee
On =
Appeal from the=20
127th District Court Harris =
County,=20
Texas Trial =
Court Cause=20
No. 2005-70334
MEMORANDUM=20
OPINION On=20
September 9, 2002, Adams hired attorney Fellows to represent him =
in a=20
federal criminal matter. The parties executed an "Attorney =
Employment=20
Contract" ("Contract"), pursuant to which Adams agreed to pay =
Fellows=20
$12,500 to negotiate a plea agreement and to pay Fellows $40,000 =
if a=20
satisfactory plea could not be reached and the case went to trial. =
Adams=20
asserts that, on November 4, 2004, he sent a letter to Fellows, =
demanding=20
the return of these items. On May 10, 2005, Fellows turned over a =
portion=20
of the property and agreed in writing to return the computer =
equipment=20
within 10 days. Adams asserts that Fellows never turned over the =
$15,800=20
or the computer equipment. On October=20
31, 2005, Adams sued Fellows Almost a year later, on July =
21, 2006,=20
the trial court rendered a default judgment in favor of Adams. On August 30, 2006, Fellows =
filed an=20
answer and a motion to set aside the default judgment. After a =
hearing,=20
the trial court denied the motion. Service =
of=20
Process In his first =
point of=20
error, Fellows contends that the trial court erred by rendering a =
default=20
judgment against him because service of process was =
defective. A default judgment cannot =
withstand a=20
direct attack by a defendant who shows that he was not served in =
strict=20
compliance with the rules governing service of process. =
Primate=20
Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994); =
Barker=20
CATV Constr., Inc. v. Ampro, Inc., 989 S.W.2d 789, 792 (Tex.=20
App.--Houston [1st Dist.] 1999, no pet.). There are no =
presumptions of=20
valid issuance, service, or return of citation when examining a =
default=20
judgment. Silver, 884 S.W.2d at 152; Ampro, =
Inc., 989=20
S.W.2d at 792. Jurisdiction over the defendant must affirmatively =
appear=20
by a showing of due service of process, independent of recitals in =
the=20
default judgment. Ampro, Inc., 989 S.W.2d at 792. =
Texas Rule of Civil Procedure =
106, which=20
governs service of citation, provides, in pertinent part, that =
citation=20
must be served by delivering a copy of the citation and petition =
to the=20
defendant, in person, or by "mailing to the defendant by =
registered or=20
certified mail, return receipt requested, a true copy of the =
citation with=20
a copy of the petition attached thereto." Tex. R. Civ. P. 106. =
When a=20
citation is served by registered or certified mail as authorized =
by Rule=20
106, the officer's return must "contain the return receipt with =
the=20
addressee's signature." Tex. R. Civ. P. 107. Here, the =
record shows=20
that service on Fellows was by a deputy constable on November 10, =
2005,=20
and that it was "[e]xecuted at P.O. Box 36324 Houston, TX 77236, =
by=20
mailing to . . . Kerry G. Fellows" by "registered/CERTIFIED MAIL =
with=20
delivery RESTRICTED TO ADDRESSEE ONLY." The return is signed by =
the deputy=20
and contains the return receipt. The record shows that "P.O. Box =
36324=20
Houston, TX 77236" is Fellows's address. The return receipt bears =
an=20
illegible signature that Adams asserts, and Fellows does not =
dispute, is=20
Fellows's signature. Fellows contends that service was defective =
because=20
the "Restricted Delivery" box is not checked on the return =
receipt.=20
Rule 106 requires that citation =
be mailed=20
to the defendant "by registered or certified mail, return receipt=20
requested," with a copy of the petition attached. Tex. R. Civ. P. =
106.=20
Rule 106 no longer requires "restricted delivery."=20
Fellows does not direct us to any authority, and =
we find=20
none, that currently holds that failure to check the box for =
restricted=20
delivery on the return receipt constitutes defective service.=20
Accordingly, =
Fellows's=20
first point of error is overruled. In his second =
point of=20
error, Fellows contends that the trial court erred by rendering a =
default=20
judgment against him because Adams's "pleading is insufficient" to =
demonstrate liability. Specifically, Fellows contends that Adams =
"fail[ed]=20
to assert that [Fellows] ever took possession of said money or =
computers."=20
A.=20
Standard of Review and Principles of Law Upon call of the docket or at =
any time=20
after a defendant is required to answer, the plaintiff may take a =
default=20
judgment against the defendant if he has not previously answered =
and=20
provided that the citation and return have been on file with the =
clerk for=20
10 days. Tex. R. Civ. P. 107, 239. A no-answer default judgment is =
properly granted if (1) the plaintiff files a petition that states =
a cause=20
of action, (2) the petition invokes the trial court's =
jurisdiction, (3)=20
the petition gives fair notice to the defendant, and (4) the =
petition does=20
not disclose any invalidity of the claim on its face. Texaco, =
Inc. v.=20
Phan, 137 S.W.3d 763, 769 (Tex. App.--Houston [1st Dist.] =
2004, no=20
pet.). If the facts set out in the petition allege a cause of =
action, a=20
default judgment conclusively establishes the defendant's =
liability.=20
Id. (citing Morgan v. Compugraphic Corp., 675 =
S.W.2d=20
729, 731 (Tex. 1984)). The non-answering party is deemed =
to have=20
admitted all facts properly pleaded. Id. (citing Holt =
Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. =
1992)).=20
Consequently, the non-answering party is precluded from =
challenging the=20
sufficiency of the evidence supporting his liability. =
Phan, 137=20
S.W.3d at 770. B. =
Analysis Here, Adams sued Fellows for, =
inter alia,=20
breach of contract. Recovery under a breach of contract claim =
requires=20
proof of four elements: (1) the existence of a valid contract, (2) =
performance or tendered performance by the plaintiff, (3) breach =
of the=20
contract by the defendant, and (4) damages sustained by the =
plaintiff as a=20
result of the breach. Crowder v. Sheirman, 186 S.W.3d =
116, 118-19=20
(Tex. App.--Houston [1st Dist.] 2005, no pet.). We examine the =
pleadings=20
to determine whether the facts set out sufficiently plead a cause =
of=20
action to support the judgment. Adams asserts in his petition =
that he=20
entered a written contract with Fellows, pursuant to which Adams =
agreed to=20
pay Fellows $12,500 to represent him in plea negotiations with the =
federal=20
government. In addition, Fellows agreed to recover property =
belonging to=20
Adams which was in the custody of federal authorities. Pursuant to =
the=20
Contract, Fellows's $12,500 fee was to be paid from "the money and =
jewelry=20
in the possession of the federal government as soon as recovered =
by=20
Attorney Fellows." The parties do not dispute the validity of the=20
Contract. In his petition, Adams asserts =
that a=20
plea agreement was reached, that Fellows recovered the Adams's =
property=20
from the federal government, and that Fellows's services=20
concluded. Adams alleges that Fellows was =
entitled to=20
retain $12,500 for his services and that Fellows turned over =
$39,500 to=20
Adams's wife. Adams asserts that, on May 10, 2004, Fellows =
executed an=20
additional written agreement to turn over the recovered "computer=20
equipment" still in his possession. Adams asserts that Fellows =
breached=20
the Contract by failing to return to Adams $15,800 in cash and =
computer=20
equipment valued at $38,800. Adams asserts that, as a result, he =
has=20
sustained $54,600 in damages. We conclude that these facts =
set out in=20
the petition allege a cause of action for breach of contact; =
hence, the=20
default judgment conclusively establishes Fellows's liability. =
See=20
Morgan, 675 S.W.2d at 731. Accordingly, Fellows's second =
issue is=20
overruled. Sufficiency of the=20
Proof of Damages In his third =
point of=20
error, Fellows contends that the trial court erred by awarding=20
unliquidated damages without a hearing. In a no-answer default =
judgment, the=20
failure to file an answer operates as an admission of the material =
facts=20
alleged in the petition, except as to unliquidated damages.=20
Heine, 835 S.W.2d at 83. If the damages being claimed are =
unliquidated, the court rendering a default judgment must hear =
evidence as=20
to damages. Tex. R. Civ. P. 243; Heine, 835 S.W.2d at 83. =
It is=20
error for the trial court to fail to require proof of unliquidated =
damages=20
before rendering a default judgment for such damages. See =
Jones v.=20
Andrews, 873 S.W.2d 102, 107 (Tex. App.--Dallas 1994, no =
writ).=20
A claim for damages is =
liquidated if the=20
amount of damages can be accurately calculated by the court from =
the=20
factual, as opposed to the conclusory, allegations in the petition =
and=20
written instruments. See Novosad v. Cunningham, =
38=20
S.W.3d 767, 773 (Tex. App.--Houston [14th Dist.] 2001, no pet.). =
When a=20
claim is liquidated and proven by written instrument, the trial =
court must=20
assess damages and render final judgment unless the defendant =
demands and=20
is entitled to a trial by jury. See Tex.R. Civ. P.=20
241. Here, Adams alleges in his =
petition that=20
Fellows breached the Contract because he failed to return $15,800 =
in cash=20
and "computer equipment" valued at $38,800. Adams attached, as =
support for=20
his allegations, a copy of the Contract and the receipt Fellows =
signed=20
promising to return the computer equipment. The Contract reflects =
that the=20
parties agreed that Fellows's $12,500 would come out of "the =
watches and=20
funds in the approximate amount of $67,000" in the custody of the =
federal=20
government, of which Fellows was to obtain release. In addition, Adams attached a =
receipt=20
from his attorney at the time, Ron Johnson, acknowledging that =
Fellows had=20
returned certain jewelry and cash to Adams's wife. The receipt =
bears the=20
signatures of Johnson and Adams's wife. The receipt also reflects =
that=20
"Fellows agrees to provide remaining computer equipment within 10 =
days,"=20
and bears Fellows's signature. The receipt does not mention the =
$15,800 in=20
cash allegedly outstanding. Adams did not offer any facts as to =
the basis=20
of the valuation of the computer equipment at issue. We conclude that Adams failed =
to provide=20
any factual bases to support his allegation that $15,800 remains=20
outstanding from what was recovered by Fellows from federal =
authorities or=20
that $38,800 is the value of the computer equipment at issue. We reverse and remand the trial =
court's=20
judgment as to the issue of damages. See Heine, 835 =
S.W.2d at 86=20
(explaining that, when no-evidence point is sustained as to =
unliquidated=20
damages resulting from no-answer default judgment, appropriate =
disposition=20
is to remand for new trial on issue of unliquidated damages);=20
Morgan, 675 S.W.2d at 734 (explaining that new trial is =
limited=20
to issue of damages because liability is already established by =
default).=20
We affirm the trial court's judgment in all other respects. =
Laura Carter Higley Justice Panel consists of Justices =
Taft, Hanks,=20
and Higley. 1. - ' '=20
2. ' - -=20
3. ' ' - " " =