law-liquidated-damages | unliquidated damages |
DAMAGES: LIQUIDATED VS. UNLIQUIDATED DAMAGES
A claim is liquidated if the amount of damages may be accurately calculated from the factual, as opposed to the
conclusory, allegations in the petition and the written instruments. See Argyle Mech., Inc. v. Unigus Steel, Inc.,
156 S.W.3d 685, 687 (Tex. App.-Dallas 2005, no pet.).
A claim is liquidated under Rule 185 if the amount of damages can be accurately calculated by the trial court
from the factual allegations, as opposed to the conclusory allegations, in the plaintiff's petition and from the
instrument in writing evidencing the account. Pine Trail Shores Owners' Ass'n, Inc. v. Aiken, 160 S.W.3d 139,
144 (Texas App.-Tyler 2003, no pet.). If the trial court was correct in its assessment, then it did not need to hear
evidence as to damages. See Tex. R. Civ. P. 241 (the trial court can assess the damages for a liquidated claim
that is proved by an instrument in writing); Rizk v. Financial Guardian Ins. Agency, 584 S.W.2d 860, 862 (Tex.
1979) (in the absence of a sworn denial meeting the requirements of Rule 185, the account is received as prima
facie evidence against the defendant).
The damages were liquidated in the sense that they could be calculated from the factual allegations in appellee's
petition and an instrument in writing. See Pentes Design, Inc. v. Perez, 840 S.W.2d 75, 79 (Tex. App.-Corpus
Christi 1992, writ denied) (defining liquidated damages in default judgment context).
Whether a contract term is a liquidated damages clause is a question of law for the court. Valence Operating Co.
v. Dorsett, 164 S.W.3d 656, 664 (Tex. 2005). Liquidated damages clauses fix in advance the compensation to a
party accruing from the failure to perform a specified contractual obligation. Id.
When a default judgment is taken against the defendant, all allegations of material fact set forth in the petition
are deemed admitted except the amount of unliquidated damages. Holt Atherton Indus. Inc. v. Heine, 835 S.W.
2d 80, 83 (Tex. 1992). In order to determine unliquidated damages, the trial court must hear evidence regarding
damages. Tex. R. Civ. P. 243. Legal sufficiency of the evidence to support an award of unliquidated damages
may be challenged on appeal from a no-answer default judgment. Argyle Mech., Inc. v. Unigus Steel, Inc., 156 S.
W.3d 685, 687 (Tex. App.—Dallas 2005, no pet.). When a defendant attacks sufficiency of the evidence to
support the trial court’s determination of damages in a default judgment, we must review the evidence adduced
in support of the judgment. Dawson v. Briggs, 107 S.W.3d 739, 748 (Tex. App.—Houston [1st Dist.] 2003, no
pet.).
We will sustain a legal sufficiency or “no evidence” challenge if (1) the evidence shows a complete absence of a
vital fact, (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a
vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence establishes
conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). We
consider the evidence in the light most favorable to the finding and indulge every reasonable inference that
supports it. Id. at 820. We credit favorable evidence if a reasonable fact finder could and disregard contrary
evidence unless a reasonable fact finder could not. Id. at 827. The evidence is legally sufficient if it would
enable reasonable and fair-minded people to reach the finding under review. Id.
LIQUIDATED AND UNLIQUIDATED DAMAGES CASE LAW
Sebritsky v. Sembritzky (Tex.App.- Houston [1st Dist.] Jan. 8, 2009)(Taft)
breach of a contractual alimony agreement, misnomer, default judgment, liquidated damages)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR
FURTHER PROCEEDINGS: Opinion by Justice Taft
Before Justices Taft, Keyes and Alcala
01-07-00251-CV Verley Lee Sembritsky, Jr. v. Michel Castrinos Sembritzky
Appeal from 312th District Court of Harris County
Trial Court Judge: Hon. James Squier
No answer default judgment based on service of citation by certified mail sustained - award of
unliquidated damages reversed and remanded
Fellows v. Adams (Tex.App.- Houston [1st Dist.] Oct. 18, 2007)(Higley)(default judgment, service by certified
mail, insufficient proof of unliquidated damages)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR
FURTHER PROCEEDINGS: Opinion by Justice Higley
Before Justices Taft, Hanks and Higley
01-06-00924-CV Kerry G. Fellows v. Rasheed Adams
Appeal from 127th District Court of Harris County (Hon. Sharolyn Wood)
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