TexPro Construction Group, LLC v. Davis
Dallas Court of Appeals, No. 05-14-00050-CV (August 19, 2015)
Justices Bridges, Fillmore, and Brown (Opinion)

Davis sued his home swimming-pool contractor, TexPro, asserting DTPA, fraud, and breach of contract claims. When TexPro failed to answer, Davis secured a partial default judgment, on liability. But because the damages claims were unliquidated, Davis had to prove up those damages at a later hearing before final judgment could be rendered. Shortly after the trial court granted the default judgment on liability, but before the hearing on damages, TexPro filed an answer. Nevertheless, after the hearing on damages the trial court entered final judgment holding TexPro liable by default and awarding actual and exemplary damages to Davis, as well as attorney’s fees. TexPro filed a restricted appeal—available to one who (1) files within six months after the judgment was signed; (2) was a party to the underlying lawsuit; (3) did not participate in the hearing that led to the judgment, or file any postjudgment motions; and (4) proves error apparent on the face of the record.

TexPro argued that, because the default judgment on liability was interlocutory and TexPro filed an answer before the hearing on damages, the trial court could not render a final default judgment against it. It relied on TRCP 239, which says a “plaintiff may … take judgment by default against [a] defendant if he has not previously filed an answer ….” The Dallas Court of Appeals, however, rejected that argument, saying “TexPro is not entitled to have the no-answer default judgment on liability reversed simply because that judgment was not final until after TexPro answered.” The Court also brushed aside TexPro’s argument that service was defective because its agent had been served at an address other than that listed in the petition and citation; there was no dispute, the Court noted, that the agent had been served. The appeals court did, however, reverse the damages and attorney’s fees awards and remanded for trial on those issues, because the evidence offered by the plaintiff was conclusory and therefore legally insufficient.