Opinion issued July 25, 2019




                                     In The

                               Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                               NO. 01-18-00165-CV
                           ———————————
      VORTEK AVIATION LLC AND WAYNE SCHMITZ, Appellants
                                        V.
             ZACH KRACHINSKI AND ARK 84 LLC, Appellees


                   On Appeal from the 165th District Court
                            Harris County, Texas
                      Trial Court Case No. 2017-58042


                         MEMORANDUM OPINION

      Appellees Zach Krachinski and Ark 84 LLC sued appellants Vortek

Aviation LLC and Wayne Schmitz for breach of contract, fraud, and several other

causes of action, alleging that Vortek and Schmitz had failed to provide repairs to

Krachinski and Ark 84’s aircraft as agreed between the parties. Neither Vortek nor
Schmitz filed a timely answer, and the trial court rendered a default judgment in

favor of Krachinski and Ark 84. Vortek and Schmitz filed a motion for new trial

asserting that the judgment did not comport with Krachinski and Ark 84’s

pleadings. The trial court denied the motion for new trial by operation of law.

Now, on appeal, Vortek and Schmitz argue: (1) the judgment rendered by the trial

court did not conform to the pleadings; (2) the trial court failed to hold a hearing

on unliquidated damages; and (3) Krachinski and Ark 84 failed to provide

evidence of unliquidated damages.

      We affirm.

                                    Background

      Krachinski created Ark 84 LLC as a holding company for his 1984 Piper

PA-46-310P Malibu aircraft (the Aircraft). Krachinski and Ark 84 (collectively,

Krachinski) engaged Vortek to make some repairs to the Aircraft and paid $71,100

in advance. Vortek is an FAA-Certified Repair Station that operates at David

Wayne Hooks Airport in Harris County, Texas, and Schmitz is Vortek’s president.

Krachinski was unhappy with the work ultimately performed by Vortek because

the repairs were incomplete and took many months longer than the time agreed to

by the parties. Krachinski sought redress by engaging an attorney to seek

completion of the repairs and/or return of the Aircraft. Krachinski was ultimately

able to reclaim the Aircraft.


                                         2
      Accordingly, on September 5, 2017, Krachinski filed suit against Vortek and

Schmitz. His petition identified Vortek, Schmitz, and a Vortek employee named

Ricardo Santiesteban as defendants.1 Krachinski alleged that, in December 2015,

“pursuant to a written proposal from Vortek (the ‘Agreement’), the parties agreed

that Vortek would install upgraded avionics in the Aircraft” for an “agreed price

[of] $71,100 for parts and labor.” The petition further alleged that “Defendants

required payment of $60,900 immediately, allegedly to take advantage of a

promotion being offered by the manufacturer,” and that Krachinski was “told by

Defendants, in writing, that the project would take ‘6 weeks or less.’” Krachinski

paid the entire $71,100 in advance and left the Aircraft with Vortek. However,

according to the petition, “Defendants did not purchase the equipment [from the

manufacturer] as they said they would.” Krachinski alleged that Vortek and

Schmitz used his money for other projects, causing him to miss the discounted

price associated with the manufacturer’s promotion, and gave “a steady stream of

excuses” as to why the project was not proceeding despite the passage of several

months.

      Krachinski alleged that Vortek eventually gave him “a written ‘promissory,’

signed by [Santiesteban] on Vortek letterhead, which was apparently intended to

serve as a written assurance that the Aircraft would be ready ‘by the end of August


1
      Santiesteban never answered and is not a party to this appeal.
                                           3
2016.’” Despite this representation by Vortek, the work was not completed by

August 2016, and “the parties agreed to have another facility at the airport perform

an annual inspection, independent of the avionics work allegedly being performed

on the Aircraft” by Vortek.

      Krachinski further alleged:

      When the inspection was completed and it was time to return the
      Aircraft to Defendants’ [Vortek and Schmitz’s] facility, for reasons
      known only to Defendants, they told the inspection facility they did
      not want the Aircraft back in their hangar because Plaintiffs
      [Krachinski and Ark 84] were not paying their bills. This blatant lie
      caused Plaintiffs to have problems with several business at the airport.

Krachinski alleged that, because of the problems that arose due to Vortek’s

“misrepresentations” about him and the extreme delays in completing the agreed-

upon repairs, he retained an attorney. Ultimately, it took Krachinski “20 months

from when the parties made the Agreement until the Aircraft was delivered” to

him, and there were still problems with the work that had been performed.

Krachinski alleged that, among other concerns, he had paid for work that was not

done, he had paid for equipment that was not installed, and some equipment had

been installed incorrectly and had to be corrected.

      Based on these facts, Krachinski alleged causes of action for breach of

contract, breach of implied warranty of good and workmanlike performance of

services, fraud, negligent misrepresentation, conversion, defamation, business



                                          4
disparagement, and conspiracy. Regarding his cause of action for breach of

contract, Krachinski alleged:

      Plaintiffs had a valid, enforceable written Agreement, supplemented
      by both written and oral amendments, which Defendants breached.
      Plaintiffs are the proper parties to sue for the breach of the contract,
      and have in every respect performed as agreed. Defendant Vortek
      breached the contract, which caused injury to Plaintiffs.

Krachinski sought actual damages, including:

      actual damages for difference in value between the avionics
      contracted for and avionics installed, lost rebates worth thousands of
      dollars, hangar expenses incurred by Plaintiffs in Indiana in
      anticipation of the return of the Aircraft and necessary to avoid
      forfeiting hangar space, insurance on the Aircraft while in
      Defendants’ possession, travel expenses for a useless trip to Texas,
      expenses to perform work that Defendants were paid to do but did not
      do, expense[s] to correct problems with the avionics installed by
      Defendants, an annual inspection required because six weeks turned
      out to be 20 months, value of avionics removed from the Aircraft that
      are still the property of Plaintiffs, expenses incurred to have pilots
      repeatedly available to test fly the Aircraft and to diagnose and repair
      installation problems caused by Defendants, and reasonable attorney’s
      fees required to convince Defendants that they had to get the project
      completed when they refused to respond to Plaintiffs’ demands
      (which still took five more months).

Krachinski also sought exemplary damages under Civil Practice and Remedies

Code chapter 41.003, mental anguish damages, and “reasonable and necessary

costs and attorney’s fees pursuant to Texas Civil Practice and Remedies Code

§ 37.009 and § 38.001.”

      In his petition, Krachinski also applied for a temporary restraining order and

temporary injunction. Krachinski alleged, “Plaintiffs have just become aware that

                                         5
Defendants have shut down Vortek and chained the doors to the business. Upon

information and belief, Defendants are in the process of selling Vortek, or the

assets of Vortek, to a foreign entity.” Krachinski sought a temporary restraining

order and temporary injunction to protect Vortek’s assets until a hearing could be

held and he could obtain a judgment.

      On September 7, 2017, Vortek was served with the original petition through

its registered agent, Thomas Kerr. The return of service was filed with the trial

court on September 9, 2017.

      On September 22, 2017, the trial court held a hearing on the application for

temporary injunction. The trial court granted the injunction, ordering that Vortek

and its members, officers, and agents were enjoined from “using, spending,

disposing of or using as collateral, proceeds from the sale of Vortek assets in the

amount of $99,000.00,” i.e., the approximate amount of Krachinski’s damages.

      Schmitz was served with the original petition on September 23, 2017, and

the return of service was filed with the trial court on September 25, 2017. Notice of

the temporary injunction order was likewise served on Vortek and Schmitz,

through attorney and registered agent Thomas Kerr, on September 27, 2017, and

the return of service was filed with the trial court that same day.

      On October 20, 2017, Krachinski moved for default judgment against

Vortek. In this motion, he sought default judgment “establishing Vortek’s liability


                                           6
and, after a hearing, render[ing] an interlocutory judgment awarding Plaintiffs

damages in the amount of $99,404.00 plus costs, attorney’s fees, and prejudgment

interest.” He sought $20,895.93 as “reasonable and necessary attorney’s fees and

expenses.” As evidence of damages, Krachinski attached exhibits containing his

sworn testimony from the temporary injunction hearing detailing his relationship

with Vortek and the damages suffered, his affidavit relating to out-of-pocket

damages, and affidavits establishing the attorney’s fees expended in “efforts to get

the work completed and get his plane back” and reasonable and necessary

attorney’s fees billed in relation to the lawsuit.

      On November 9, 2017, Krachinski moved for default judgment against

Schmitz, again seeking judgment as to Schmitz’s liability and the same damages as

those listed in the motion for default judgment against Vortek. He again attached

transcripts of his testimony and affidavits regarding damages and attorney’s fees.

The amount of attorney’s fees identified in this motion was $26,285.58.

      Krachinski’s testimony from the temporary injunction hearing detailed the

nature of his dealings with Vortek, Schmitz, and Santiesteban. Krachinski testified

that he had had specific dealings with Schmitz as the “main owner” of Vortek. And

Kranchinski testified regarding the specific damages he incurred as a result of

Vortek and Schmitz’s failure to perform the work as agreed. Krachinski’s damages

affidavit averred that he had personal knowledge “of the expenses incurred by me


                                            7
and my company [Ark 84] in relation to the fraudulent and unethical actions,

statements and business practices of the defendants in this lawsuit.” He itemized

his damages, identifying items such as $3,500 for the “[d]ifference in value

between    equipment      installed   and       equipment   paid   for”;   $4,250   for

“[m]anufacturer’s promotion incentives not received but bargained for”; $7,545 in

hangar expenses; and $16,764 for “[a]viation attorney assistance forcing

Defendants to finish job.” According to the affidavit, Krachinski’s total “out of

pocket” damages amounted to $99,404.

      On December 7, 2017, the trial court rendered its final default judgment in

favor of Krachinski and Ark 84. The trial court awarded $99,404.00 as the

“principal amount due” jointly and severally against Vortek, Schmitz, and

Santiesteban. The trial court also awarded Krachinski and Ark 84 $19,900.93 as

attorney’s fees, $995 as costs, and interest.

      On December 8, 2017, the day after the trial court rendered default

judgment, Vortek and Schmitz filed their original answer, a general denial.

      On January 5, 2018, Vortek and Schmitz filed their motion for new trial. In

this motion, Vortek and Schmitz argued, “Nowhere in Plaintiff’s Original Petition

does Plaintiff [cite] any oral or written agreement directly between Plaintiff and

Defendant Schmitz.” Vortek and Schmitz also complained that the judgment found

all defendants jointly and severally liable but failed to specify “what cause of


                                            8
action, if any, the judgment was based on.” They argued that “there is no pleading

sufficient to support a judgment against Defendant Schmitz under either the

contract or fraud theories” because the pleadings did not identify a contract directly

between him and Krachinski, there were no allegations of fraud committed by

Schmitz, and the fraud claim could not support an award of attorney’s fees.

      The motion for new trial further stated:

      Defendant Schmitz’s failure to timely file an answer occurred as a
      result of accident or mistake and not due to conscious disregard.
      Defendant Vortek is no longer an operating entity and has minimal
      assets. On advice of counsel, Vortek intended to pursue bankruptcy
      and communicated with a bankruptcy attorney. Due to a
      miscommunication, and Mr. Schmitz’s departure from the United
      States on business, the bankruptcy was not completed and filed prior
      to execution of the judgment.

      Schmitz and Vortek argued that the court should grant a new trial “because

the judgment entered is not properly supported by the pleadings of Plaintiff” and

the live pleadings did not establish Schmitz’s liability because there were no

allegations that Schmitz himself was a party to the contract or was in privity of

contract with a party. The motion for new trial further argued that Krachinski was

not entitled to all of his hangar fees: “Regardless of location, the aircraft would

need to be hangered. Plaintiff would be entitled to recover excess hangar fees, but

should not recover for both the expenses incurred in Texas and Indiana as the

aircraft had to be stored regardless of flight status.” Schmitz and Vortek made

similar allegations regarding insurance costs and the purported “double recovery”

                                          9
for both “a rebate” and separate “Manufacturer’s Promotion incentives.” They

also argued that Krachinski’s damages affidavit “identifies damages for extra

travel time on business trips . . . and for the refinish of the instrument panel . . .

which are not support by [the] Original Petition.”

      Vortek and Schmitz’s motion for new trial was unverified, and the record

does not contain any evidence accompanying it.

      Krachinski responded. The response included evidence that Vortek never

filed for bankruptcy and that Krachinski’s lawyer contacted Kerr, the lawyer

representing Vortek and Schmitz, prior to filing the motion for default judgment

and asked whether Vortek intended to file an answer, but received no response.

Thus, Krachinski argued that Vortek and Schmitz could not establish the necessary

elements to have the default judgment set aside.2

      The motion for new trial was denied by operation of law.




2
      In Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. [Comm’n Op.]
      1939), the Texas Supreme Court set forth three requirements that a defaulting
      party must satisfy to set aside a default judgment and obtain a new trial: (1) the
      defaulting party’s failure to file an answer before judgment was not intentional or
      the result of conscious indifference, but was a mistake or accident; (2) the
      defaulting party has a meritorious defense; and (3) a new trial will not result in
      delay or prejudice to the non-defaulting party. 133 S.W.2d at 126; see also
      Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 925–26 (Tex. 2009)
      (discussing Craddock factors in context of challenge to trial court’s ruling on
      motion for new trial seeking to set aside default judgment).

                                          10
                  Default Judgment Conforms to the Pleadings

      In their first issue, Vortek and Schmitz argue that the trial court erred in

rendering a default judgment in favor of Krachinski because the judgment did not

conform to the pleadings. Specifically, Vortek and Schmitz argue that Krachinski

“failed to plead and provide evidence of a contract between [Krachinski]

and . . . Schmitz.”

      We first observe that Vortek’s and Schmitz’s failure to file answers in this

case operated as an admission of all of the material facts alleged in Krachinski’s

petition, except for unliquidated damages. See, e.g., Dolgencorp of Tex., Inc. v.

Lerma, 288 S.W.3d 922, 930 (Tex. 2009); Holt Atherton Indus., Inc. v. Heine, 835

S.W.2d 80, 83 (Tex. 1992). There was no need for Krachinski to have provided

proof of his claims. See Paradigm Oil, Inc. v. Retamco Operating, Inc., 372

S.W.3d 177, 183 (Tex. 2012) (non-answering party in no-answer default judgment

has “admitted both the truth of facts set out in the petition and the defendant’s

liability on any cause of action properly alleged by those facts,” thus, “defendant’s

default . . . establishes liability”); UNL Inc. v. Oak Hills Photo Finishing, Inc., 733

S.W.2d 402, 406 (Tex. App.—San Antonio 1987, no pet.) (“It is not necessary that

the petition plead the evidence upon which the plaintiff relies to establish his

asserted cause of action[.]”). The material question on this issue is whether

Krachinski’s pleading properly alleged causes of action against Vortek and


                                          11
Schmitz and whether the judgment rendered by the trial court conformed to that

pleading.

A.    Standard of Review

      A default judgment, like all judgments, must conform to the pleadings. See

Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979); Lynch v. Lynch, 540

S.W.3d 107, 134 (Tex. App.—Houston [1st Dist.] 2017, pet. denied); see also TEX.

R. CIV. P. 301 (“The judgment of the court shall conform to the pleadings[.]”).

Where a default judgment is challenged based on the pleadings which support it,

the default judgment is erroneous only if (1) the petition does not attempt to state a

cause of action that is within the jurisdiction of the court; (2) the petition does not

give fair notice to the defendant of the claim asserted; or (3) the petition

affirmatively discloses the invalidity of such claim. Paramount Pipe & Supply Co.

v. Muhr, 749 S.W.2d 491, 494 (Tex. 1988); Dodd v. Savino, 426 S.W.3d 275, 291

(Tex. App.–Houston [14th Dist.] 2014, no pet.); Elite Door & Trim, Inc. v. Tapia,

355 S.W.3d 757, 766 (Tex. App.—Dallas 2011, no pet.).

      In determining whether a pleading provides fair notice, we must assess

whether the opposing party can ascertain from the pleading the nature and basic

issues of the controversy and what testimony will be relevant to enable the

opposing party to prepare a defense. See Low v. Henry, 221 S.W.3d 609, 612 (Tex.

2007); Lynch, 540 S.W.3d at 134–45; Tapia, 355 S.W.3d at 766. Where, as here,


                                          12
no special exceptions are filed, we liberally construe the pleadings in favor of the

pleader. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex.

2000); see also Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993) (recognizing that

court should liberally construe petition to determine what causes of action may be

reasonably inferred from the pleading). That an element of a claim has been

omitted is not dispositive. See Boyles, 855 S.W.2d at 601. The fair notice standard

“relieves the pleader of the burden of pleading evidentiary matters with meticulous

particularity.” Tapia, 355 S.W.3d at 766. Rather, a plaintiff’s petition must contain

“a short statement of the cause of action sufficient to give fair notice of the claim

involved.” TEX. R. CIV. P. 47(a); see also Tex. R. Civ. P. 45(b) (pleadings shall

“consist of a statement in plain and concise language of the plaintiff’s cause of

action” and further providing, “That an allegation be evidentiary or be of legal

conclusion shall not be grounds for an objection when fair notice to the opponent is

given by the allegations as a whole”).

      In determining whether a pleading is adequate, we examine whether an

opposing attorney of reasonable competence, on review of the pleading, can

ascertain the nature and the basic issues of the controversy. Tapia, 355 S.W.3d at

766. “[A] petition is sufficient if a cause of action may reasonably be inferred from

what is specifically stated in the petition, ‘even if an element of the cause of action




                                          13
is not specifically alleged.’” Dodd, 426 S.W.3d at 292 (quoting Boyles, 855

S.W.2d at 601).

B.    Analysis

      Here, Schmitz does not argue that Krachinski’s causes of action were

outside the trial court’s jurisdiction or that they were affirmatively invalidated by

the petition. See Muhr, 749 S.W.2d at 494 (stating grounds for challenging default

judgment based on pleadings which support it). Rather, Schmitz argues that

Krachinski failed to plead that Schmitz was a party to a contract with Krachinski or

was in privity of contract with Krachinski. Thus, we consider whether Krachinski’s

pleadings gave Schmitz fair notice of the breach of contract claim.

      Krachinski’s pleadings identified both Vortek and Schmitz, as Vortek’s

president, as “Defendants.” Krachinski alleged in the petition that, in December

2015, “pursuant to a written proposal from Vortek (the ‘Agreement’), the parties

agreed that Vortek would install upgraded avionics in the Aircraft” for an “agreed

price [of] $71,100 for parts and labor.” The petition further alleged that

“Defendants required payment of $60,900 immediately, allegedly to take

advantage of a promotion being offered by the manufacturer” and that Krachinski

was “told by Defendants, in writing, that the project would take ‘6 weeks or less.’”

Krachinski paid the entire $71,100 in advance and left the Aircraft with Vortek.




                                         14
Krachinski specifically alleged as a cause of action for breach of contract against

all Defendants:

      Plaintiffs had a valid, enforceable written Agreement, supplemented
      by both written and oral amendments, which Defendants breached.
      Plaintiffs are the proper parties to sue for the breach of the contract,
      and have in every respect performed as agreed. Defendant Vortek
      breached the contract, which caused injury to Plaintiffs.

Regarding damages, Krachinski likewise pled for:

      actual damages for the difference in value between the avionics
      contracted for and avionics installed, lost rebates worth thousands of
      dollars, hangar expenses incurred by Plaintiffs in Indiana in
      anticipation of the return of the Aircraft and necessary to avoid
      forfeiting hangar space, insurance on the Aircraft while in
      Defendants’ possession, travel expenses for a useless trip to Texas,
      expenses to perform work that Defendants were paid to do but did not
      do, expense[s] to correct problems with the avionics installed by
      Defendants, an annual inspection required because six weeks turned
      out to be 20 months, value of avionics removed from the Aircraft that
      are still the property of Plaintiffs, expenses incurred to have pilots
      repeatedly available to test fly the Aircraft and to diagnose and repair
      installation problems caused by Defendants, and reasonable attorney’s
      fees required to convince Defendants that they had to get the project
      completed when they refused to respond to Plaintiffs’ demands
      (which still took five more months).

      Thus, Krachinski pled the formation of a valid agreement to which Schmitz

was a “party,” as the president of Vortek; that Krachinski performed under the

agreement; that the “Defendants”—including Schmitz—breached this agreement,

and that the “Defendants’” breach caused him damages. See USAA Tex. Lloyds Co.

v. Menchaca, 545 S.W.3d 479, 501 n.21 (Tex. 2018) (breach of contract action

requires proof of four elements: (1) formation of valid contract; (2) performance by

                                        15
plaintiff; (3) breach by defendant; and (4) damages that plaintiff sustained as result

of breach). Considering the pleading as a whole and liberally construing it, as we

must, it is clear that while Schmitz was not listed with particularity in the pleadings

regarding the breach of contract claim, he was nevertheless identified as a party

and a named defendant on that claim. See Garcia v. Tester, No. 13-15-00498-CV,

2016 WL 4578405, at *5 (Tex. App.—Corpus Christi–Edinburg Sept. 1, 2016, no

pet.) (mem. op.) (holding, “[i]n light of the entire pleading,” that when petition

“clearly identified” individual as defendant, alleged individual was “a co-owner”

of corporate defendant, and petition “then set forth allegations of negligence

pertaining to [the d/b/a identity of the corporate defendant],” pleadings were

sufficient to fairly notify individual defendant of claims being made against him);

UNL Inc., 733 S.W.2d at 406–07 (holding that pleadings that expressly identified

the defendants and alleged generally that “Defendants” engaged in complained-of

conduct were sufficient to give fair notice of claim); see also Tapia, 355 S.W.3d at

766 (fair notice standard “relieves the pleader of the burden of pleading evidentiary

matters with meticulous particularity”).

      Krachinski’s pleading here was sufficient for Schmitz to ascertain the nature

and basic issues—including a breach of contract claim—that would be involved in

the lawsuit, and it was sufficient to enable Schmitz to determine what testimony or

other evidence would be relevant to enabling him to prepare a defense. See Low,


                                           16
221 S.W.3d at 612. We conclude that Schmitz received fair notice of the breach of

contract claim against him. See id.

      Vortek further argues that the trial court erred in awarding attorney’s fees

against it because Civil Practice and Remedies Code section 38.001 only allows

recovery of attorney’s fees against a corporation or an individual, and it is a limited

liability company. See TEX. CIV. PRAC. & REM. CODE ANN. § 38.001; Alta Mesa

Holdings, L.P. v. Ives, 488 S.W.3d 438, 455 (Tex. App.—Houston [14th Dist.]

2016, pet. denied) (holding that section 38.001 does not authorize recovery of

attorney’s fees in breach of contract action against limited liability company).

However, Krachinski asserted multiple causes of action against Vortek, and Vortek

did not challenge all of the causes of action asserted against it on appeal.

Krachinski also sought attorney’s fees under Civil Practice and Remedies Code

chapter 37, and Vortek does not challenge this basis for the award of attorney’s

fees on appeal.

      Generally, an appellant must attack all independent bases or grounds that

fully support a complained-of ruling or judgment, and if the appellant fails to do

so, we must affirm the ruling or judgment. Oliphant Fin. L.L.C. v. Hill, 310

S.W.3d 76, 77–78 (Tex. App.—El Paso 2010, pet. denied); see also Britton v. Tex.

Dep’t of Criminal Justice, 95 S.W.3d 676, 681–82 (Tex. App.—Houston [1st

Dist.] 2002, no pet.) (holding that appellant must attack all independent grounds


                                          17
that fully support an adverse ruling; if appellant fails to do so, we must affirm trial

court’s judgment). “This proposition is predicated upon the understanding that if

an independent ground fully supports the complained-of ruling or judgment, but

the appellant assigns no error to that independent ground,” then the appellate court

must accept the validity of the unchallenged ground, and, “thus, any error in the

grounds challenged on appeal is harmless because the unchallenged independent

ground fully supports the complained-of ruling or judgment.” Oliphant Fin., 310

S.W.3d at 78.

      Because Vortek has failed to attack all independent grounds that would fully

support the trial court’s judgment, we must affirm the judgment. See id.; Britton,

95 S.W.3d at 682.

      We overrule Vortek and Schmitz’s first issue.

                              Unliquidated Damages

      In their second and third issues, Vortek and Schmitz challenge the trial

court’s award of damages, arguing that the trial court erred in failing to hold a

hearing on unliquidated damages and that Krachinski failed to provide evidence of

unliquidated damages.

      Rule of Civil Procedure 243 provides:

      If the cause of action is unliquidated or be not proved by an
      instrument in writing, the court shall hear evidence as to damages and
      shall render judgment therefor, unless the defendant shall demand and
      be entitled to a trial by jury in which case the judgment by default

                                          18
      shall be noted, a writ of inquiry awarded, and the cause entered on the
      jury docket.

TEX. R. CIV. P. 243. For an unliquidated claim where liability is established, as

here, evidence of damages may be supplied by affidavits. See Dodd, 426 S.W.3d at

293; Silverado Truck & Diesel Repair, LLC v. Lawson, No. 05-18-00540-CV,

2019 WL 1467966, at *4 (Tex. App.—Dallas Apr. 3, 2019, no pet.) (mem. op.).

Thus, it was not necessary for the trial court to hold a hearing in order to consider

evidence of unliquidated damages. See Lawson, 2019 WL 1467966, at *4 (holding

that trial court did not err by failing to conduct hearing on unliquidated damages

where it considered affidavit evidence).

      Here, Krachinski provided to the trial court a certified copy of his sworn

testimony from the temporary injunction hearing describing the circumstances that

resulted in his loss and identifying his out-of-pocket damages, and he provided an

affidavit, based on his personal knowledge and identifying the total amount owed

as a result of Vortek and Schmitz’s conduct. He also provided affidavits from his

attorney establishing reasonable and necessary attorney’s fees incurred in this case.

Contrary to Vortek and Schmitz’s assertion, this was evidence sufficient to support

the award of unliquidated damages and attorney’s fees. See Tex. Commerce Bank,

Nat’l Ass’n v. New, 3 S.W.3d 515, 517 (Tex. 1999); Huey-You v. Kimp, No. 02-16-

00172-CV, 2018 WL 359633, at *3 (Tex. App.—Fort Worth Jan. 11, 2018, pet.

denied) (mem. op.) (“During a default-judgment proceeding, affidavit testimony

                                           19
will support the award of unliquidated damages if the affidavit avers personal

knowledge of the facts, describes the circumstances that resulted in the loss, and

identifies the total amount owed as a result.”); Dodd, 426 S.W.3d at 293 (same).

      Vortek and Schmitz also argue that Krachinski improperly included

attorney’s fees “as an element of actual damages.” However, any error with respect

to awarding damages in an amount greater than had been pled is waived if the

complaining party fails “to object to the amount of the judgment.” Siegler v.

Williams, 658 S.W.2d 236, 240 (Tex. App.—Houston [1st Dist.] 1983, no writ);

see Coleman v. Dean, No. 04–14–00811–CV, 2015 WL 5156921, at *6 (Tex.

App.—San Antonio Sept. 2, 2015, pet. dism’d) (mem. op.) (holding that party

waives complaint that damages award exceeded amount pled in petition when

complaint was not raised in trial court); see also In re Nalle Plastics Family Ltd.,

406 S.W.3d 168, 174–75 (Tex. 2013) (recognizing that attorney’s fees unrelated to

ongoing litigation but instead claimed as an element of damages may be recovered

as compensatory damages); CBIF Ltd. P’ship v. TGI Friday’s Inc., No. 05-15-

00157-CV, 2017 WL 1455407, at *15 (Tex. App.—Dallas Apr. 21, 2017, pet.

denied) (mem. op.) (discussing circumstances in which attorney’s fees may be

considered as part of damage award). “The party making . . . an objection [to the

amount of damages] should do so in a motion to limit the judgment to the amount

pleaded or raise the issue in a motion for new trial.” Siegler, 658 S.W.2d at 240.


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Vortek and Schmitz failed to raise any complaints regarding the award of

attorney’s fees in their motion for new trial, and, thus, they have waived this

complaint. See id.

      We overrule Vortek and Schmitz’s second and third issues.

                                   Conclusion

      We affirm the judgment of the trial court.




                                             Evelyn V. Keyes
                                             Justice

Panel consists of Justices Keyes, Kelly, and Goodman.




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