                               Fourth Court of Appeals
                                      San Antonio, Texas
                                  MEMORANDUM OPINION
                                          No. 04-15-00821-CV

                          Billy Albert TOMES d/b/a Bexar County Customs,
                                            Appellant

                                                    v.

                                          Justin THOMPSON,
                                                 Appellee

                      From the County Court at Law No. 10, Bexar County, Texas
                                   Trial Court No. 2015CV02126
                              Honorable Karen Crouch, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice
                  Jason Pulliam, Justice

Delivered and Filed: October 5, 2016

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

           In this restricted appeal, Billy Albert Tomes challenges the trial court’s no-answer default

judgment in favor of Justin Thompson. Tomes argues the evidence is insufficient to support the

awards of damages and attorney’s fees. We agree and we therefore reverse the judgment in part

and remand the case to the trial court for a new trial on damages.

           Thompson filed suit against Tomes in April 2015. Thompson alleged in his petition that

he took his 1957 Chevrolet Bel Air to Tomes’s shop for restoration and made payments to Tomes

totaling $ 9,270, but that Tomes failed to perform any work on the car. Thompson alleged he took
                                                                                      04-15-00821-CV


possession of his car and that it will cost him $11,000 “to restore the Chevy to its previous

condition.” Thompson asserted claims for violations of the Texas Deceptive Trade Practices Act,

common law fraud, negligence, breach of contract, and quantum meruit. In addition, Thompson

alleged that Tomes had been unjustly enriched in the amount of $523,030. Thompson sought

actual damages, treble damages, punitive damages, attorney’s fees, and interest. The petition was

not sworn and did not have any documents attached.

       Tomes failed to answer and the trial court signed a default judgment. The judgment awards

Thompson $20,270 for breach of contract, $20,270 for unjust enrichment, $20,270 for fraud,

$60,810 for actual and multiple damages under the Texas Deceptive Trade Practices Act, $100,000

in exemplary damages, $6,932.34 in prejudgment interest, and $1,500 for attorney’s fees. Tomes

did not file any postjudgment motions, but filed a restricted appeal in which he contends there is

legally insufficient evidence to support the damage awards and legally and factually insufficient

evidence to support the award of attorney’s fees.

       To prevail on his restricted appeal, Tomes “must establish that: (1) [he] filed notice of the

restricted appeal within six months after the judgment was signed; (2) [he] was a party to the

underlying lawsuit; (3) [he] did not participate in the hearing that resulted in the judgment

complained of and did not timely file any postjudgment motions or requests for findings of fact

and conclusions of law; and (4) error is apparent on the face of the record.” Alexander v. Lynda’s

Boutique, 134 S.W.3d 845, 848 (Tex. 2004); see TEX. R. APP. P. 26.1(c), 30. The record clearly

establishes the first three elements, and the only element in dispute is whether there is error

apparent from the face of the record. “The face of the record, for purposes of [a restricted appeal],

consists of all the papers on file in the appeal, including the [reporter’s record].” Norman

Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam). Our review in a

restricted appeal may include legal and factual insufficiency claims. Id.
                                                -2-
                                                                                     04-15-00821-CV


        When a default judgment is taken against a non-answering defendant, all allegations of

material fact properly pled in the petition are deemed admitted, except for the amount of

unliquidated damages. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992). The

trial court must hear evidence as to damages unless the damages sought are liquidated and proved

by an instrument in writing. TEX. R. CIV. P. 241, 243. The plaintiff must prove by competent

evidence both the amount of his unliquidated damages and the causal nexus between the event

sued upon and his injuries. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731-32 (Tex. 1984).

        In this case, the trial court held a hearing on the record before signing the judgment. The

record reflects that Thompson did not appear, and only his attorney was present. Counsel did not

present any witnesses or affidavits to support Thompson’s claims for actual damages. Instead,

counsel made the following unsworn statement to the court:

        We filed suit against Mr. Tomes on April 7, 2015. He has not filed an answer. Your
        Honor, and [sic] June 2013 the plaintiff brought his 1957 Chevrolet bell air [sic]
        into you [sic] for restoration which is worth 40,000 dollars. He paid Mr. Tomes
        $3,925 down for the work. And $520 for the rims and tires. He made additional
        payments of $1000 and $300 on July 11, $275 on June 12, $500 on June 19. And a
        final payment of 2500 on December 20. Mr. Thompson took possession of the car
        from Mr. Tomes and he did not do any of the work and my client paid him, it’s
        going to cost him a thousand dollars to restore the Chevy to its previous condition.

Counsel’s statement to the court was almost a verbatim recitation of the factual allegations in the

petition.

        Tomes contends that counsel’s statements to the court did not constitute competent

evidence because counsel was not sworn, the statements were not shown to be based on personal

knowledge, and counsel could not properly serve dual roles as lawyer and fact witness for his

client. He argues the evidence is therefore legally insufficient to support the awards of actual

damages. Thompson contends that counsel’s unsworn statements must be considered evidence




                                                -3-
                                                                                  04-15-00821-CV


because Tomes failed to preserve any error by not objecting, and he argues that counsel’s

statements alone are legally sufficient to support the award of actual damages.

       Statements made to the court by an attorney are generally not considered evidence unless

the attorney has been sworn. Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (per curiam).

“[T]he opponent of the testimony can waive the oath requirement by failing to object when the

opponent knows or should know that an objection is necessary.” Id. This court has held that no

waiver will be found based on a lack of objection when neither the opponent of the testimony nor

his counsel is present. In re L.M.Q., No. 04-04-00085-CV, 2005 WL 954284, at *1 (Tex. App.—

San Antonio, April 27, 2005, no pet.) (mem. op.); In re B.N.B., No. 04-04-00026-CV, 2005 WL

236665, at *3 (Tex. App.—San Antonio Feb. 2, 2005, no pet.) (mem. op.). “Under those

circumstances, the opponent of the testimony did not know and could not have known that an

objection was necessary.” In re B.N.B., 2005 WL 236665, at *3.

       Neither Tomes nor an attorney acting on his behalf was present at the default judgment

hearing. In this circumstance, we hold the oath requirement was not waived and counsel’s unsworn

statements to the court do not constitute evidence. Thompson thus failed to prove the amount of

his unliquidated damages and we must reverse the damage awards. Further, because there is no

evidence to support an award of actual damages, the exemplary damages, DTPA additional

damages, and award of attorney’s fees must also be reversed. See TEX. CIV. PRAC. & REM. CODE

ANN. § 41.004 (West 2015) (recovery of more than nominal damages is prerequisite to award of

exemplary damages); TEX. BUS. & COMM. CODE ANN. § 17.50(b)(1), (h) (West 2011) (award of

DTPA multiple damages is contingent on award of actual economic damages); Green Int’l, Inc. v.

Solis, 951 S.W.2d 384, 390 (Tex. 1997) (holding that to recover attorney’s fees in breach of

contract action, party must prevail and recover damages.); Nabours v. Longview Sav. & Loan

Ass’n, 700 S.W.2d 901, 905 (Tex. 1985) (award of statutory damages under DTPA required before
                                               -4-
                                                                                   04-15-00821-CV


attorney’s fees may be awarded). Because there is a complete absence of evidence of damages,

the evidence is legally insufficient to support the judgment. See Merrell Dow Pharms., Inc. v.

Havner, 953 S.W.2d 706, 711 (Tex. 1997).

       We therefore affirm the judgment of liability, reverse the awards of damages and attorney’s

fees, and remand the case for a new trial on the issue of unliquidated damages. See Holt Atherton,

835 S.W.2d at 86.

                                                 Luz Elena D. Chapa, Justice




                                               -5-
