                        In the
                   Court of Appeals
           Second Appellate District of Texas
                    at Fort Worth
                 ___________________________
                      No. 02-19-00301-CV
                 ___________________________

       CARLOS ALVAREZ AND JUDITH ALVAREZ, Appellants

                                V.

DIANA O. AGYEMANG, JANET ACHEAMPONG, AND YAW APPIAH-KUBI,
                         Appellees



              On Appeal from the 141st District Court
                      Tarrant County, Texas
                  Trial Court No. 141-301157-18


              Before Gabriel, Bassel, and Womack, JJ.
              Memorandum Opinion by Justice Gabriel
                            MEMORANDUM OPINION

       Appellants Carlos and Judith Alvarez (collectively, the Alvarezes) appeal from a

default judgment entered against them and in favor of appellees Diana O. Agyemang,

Janet Acheampong, and Yaw Appiah-Kubi (collectively, Appellees) on their claims

against the Alvarezes for personal injuries arising from a car accident. The Alvarezes

argue that Appellees failed to proffer evidence of a causal nexus between the car

accident and their injuries, did not sufficiently establish the amount of their

unliquidated damages, and were not entitled to recover attorney’s fees. Because we

conclude that Appellees were not entitled to the recovery of their attorney’s fees and

failed to proffer any evidence that their unspecified personal injuries were caused by

the car accident, we reverse the default judgment in part and remand the case to the

trial court for further, limited proceedings.

                                  I. BACKGROUND

       On November 6, 2016, Judith was driving a car that was owned by Carlos

when she was involved in an accident with a car carrying Appellees. On July 26, 2018,

Appellees filed a negligence suit to recover damages for their personal injuries, which

they alleged were proximately caused by the 2016 car accident. On November 8,

2018, Appellees served the citations on the Alvarezes. See Tex. R. Civ. P. 106(a).

       On April 16, 2019, the trial court entered an order setting Appellees’ petition

for trial during the week of August 12, 2019. On July 3, 2019, Appellees filed a

motion for default judgment and argued that although the Alvarezes had been served
                                                2
with citations, they had not appeared in the suit. Attached to the motion were the

returns of service on the Alvarezes, business-records affidavits regarding Appellees’

medical bills, and Appellees’ itemized medical bills from an Arlington hospital. It

appears that the trial court did not hold a hearing on the motion.1

       On July 16, 2019, the trial court granted the motion for default judgment and

entered final judgment in favor of Appellees, awarding $3,000 in attorney’s fees and

$59,798.93 in damages. See Tex. R. Civ. P. 239; see also Tex. R. Civ. P. 107(h)

(prohibiting default judgment unless proof of service has been on file with the court

for ten days). The Alvarezes filed notices of appeal from the default judgment on

August 15, 2019—thirty days after judgment. See Tex. R. App. P. 26.1. They now

seek to reverse the default judgment and request either a rendition or a remand for a

new trial because (1) no properly admitted evidence supported the awarded damage

amount, (2) Appellees introduced no evidence to prove a causal nexus between their

injuries and the car accident, and (3) Appellees did not plead for recoverable

attorney’s fees.




       The court reporter informed this court that she did “not show that a record
       1

was taken” in this case. The trial court’s docket sheet does not indicate that a hearing
was held; the order granting default judgment reflects that the trial court “reviewed
the records in this matter” and “consider[ed] the motion.”

                                           3
                 II. PROPRIETY OF DEFAULT JUDGMENT

                             A. STANDARD OF REVIEW

      Typically, a party fails to preserve error in a direct appeal from a default

judgment if the party fails to file a motion for new trial establishing the Craddock

elements. Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. [Comm’n

Op.] 1939); see Massey v. Columbus State Bank, 35 S.W.3d 697, 699 (Tex. App.—

Houston [1st Dist.] 2000, pet. denied) (discussing Tex. R. Civ. P. 324(b)(1) and

Craddock, 133 S.W.2d at 126). The Alvarezes raise none of the Craddock elements and

do not rely on extrinsic evidence in their appellate brief, arguing instead that

Appellees did not proffer any evidence to support their damages and were not entitled

to attorney’s fees as a matter of law. We construe the Alvarezes’ appellate issues to be

directed to the legal sufficiency of the evidence to support the trial court’s default

judgment, which we may consider even in the absence of a motion for new trial. See

In re Marriage of Collins & Tipton, No. 07-06-0314-CV, 2008 WL 3930559, at *2 (Tex.

App.—Amarillo Aug. 27, 2008, no pet.) (mem. op.); Argyle Mech., Inc. v. Unigus Steel,

Inc., 156 S.W.3d 685, 687 & n.1 (Tex. App.—Dallas 2005, no pet.); Dawson v. Briggs,

107 S.W.3d 739, 748 (Tex. App.—Fort Worth 2003, no pet.). See generally Tex. R.

App. P. 38.9 (requiring liberal construction of appellate briefs); Perry v. Cohen,

272 S.W.3d 585, 587 (Tex. 2008) (“[A]ppellate courts should reach the merits of an

appeal whenever reasonably possible.”).


                                           4
      In a legal-sufficiency review, we consider only the evidence and inferences that

tend to support the finding and disregard all contrary evidence and inferences. Holt

Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex. 1992); see also Dawson, 107 S.W.3d

at 748 (“When a specific attack is made upon the legal or factual sufficiency of the

evidence to support the trial court’s determination of damages in a default judgment,

the appellant is entitled to a review of the evidence produced.”). Anything more than

a scintilla of evidence is legally sufficient to support the finding. See Holt Atherton,

835 S.W.2d at 84. The trial court’s default judgment, entered after the Alvarezes

failed to appear, operated as an admission of all allegations of fact set out in

Appellees’ petition, including a causal nexus between the Alvarezes’ conduct and the

car accident; but the default did not operate as an admission regarding a causal nexus

between the accident and Appellees’ injuries or regarding the amount of Appellees’

unliquidated damages. See Paradigm Oil, Inc. v. Retamco Oper., Inc., 372 S.W.3d 177, 183

(Tex. 2012); Holt Atherton, 835 S.W.2d at 83; Transport Concepts, Inc. v. Reeves,

748 S.W.2d 302, 304–05 (Tex. App.—Dallas 1988, no writ). Thus, Appellees were

required to prove the amount of unliquidated damages. See Tex. R. Civ. P. 243;

Dolgencorp, Inc. v. Lerma, 288 S.W.3d 922, 930 (Tex. 2009). And part of proving the

amount of Appellees’ unliquidated damages was offering competent proof of a causal

nexus between the 2016 car accident and their injuries. See Morgan v. Compugraphic

Corp., 675 S.W.2d 729, 732 (Tex. 1984).


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               B. CAUSAL NEXUS BETWEEN ACCIDENT AND INJURIES

       The Alvarezes contend that Appellees failed to proffer evidence establishing

that their unliquidated damages were caused by the car accident.         As we have

explained, Appellees were required to do so by competent evidence. See id. Appellees

assert that their “medical records evidence,” which was attached to their default-

judgment motion, established a causal nexus between the accident and their personal

injuries.   The attached evidence consisted of itemized bills showing the charges

incurred by Appellees at an Arlington hospital on November 6, 2016. These bills

merely list what medical procedures were performed on that date and the charge for

each.2 Regarding Appiah-Kubi, Appellees also attached the bill for an unidentified

surgery performed at the same hospital on September 27, 2018.3

       We conclude that this evidence is less than a scintilla of proof that these

medical costs were caused by or a result of the car accident. The bills merely reflect

the fact of the incurred charges. Simply because Appellees received treatment at an

Arlington hospital on the same day as the accident (or two years later) does not equate

to more than a scintilla of evidence of a causative link to the accident. In other

words, the fact of incurred medical costs is not evidence that Appellees’ injuries were


     Two examples: “1CT C-SPINE W/O CONTRAS 3702.05” and “1 EMER
       2

DEPT LEVEL 3 1439.00.”

       This “GENERAL SURGERY” occurred two months after Appellees filed suit
       3

and almost two years after the car accident.

                                          6
caused by or a result of the car accident. See A.B.F. Freight Sys., Inc. v. Austrian Imp.

Serv., Inc., 798 S.W.2d 606, 615 (Tex. App.—Dallas 1990, writ denied) (“The damages

must be ascertainable in some manner other than by mere speculation or conjecture,

and by reference to some fairly definite standard, established experience, or direct

inference from known facts.”).      This is especially true when, as here, Appellees

proffered no testimony by affidavit or at a hearing about their specific injuries. Cf.

Tex. Commerce Bank, Nat’l Ass’n v. New, 3 S.W.3d 515, 516 (Tex. 1999) (per curiam)

(approving use of affidavits to establish unliquidated damages under Rule 243);

Morgan, 675 S.W.2d at 733 (holding causative link provided by plaintiff’s testimony,

which described her symptoms and explained when they began, even though no

expert medical evidence proffered); SACMD Acquisition Corp. v. Trevino, No. 13-07-

00509-CV, 2009 WL 2541840, at *5 (Tex. App.—Corpus Christi–Edinburg Aug. 20,

2009, no pet.) (mem. op.) (holding plaintiff’s affidavit “establishes a sequence of

events from which the trier of fact may properly infer that [plaintiff’s] fall on

[defendants’] property caused him to suffer injury”); Cotton Patch Café v. McCarty, No 2-

05-082-CV, 2006 WL 563307, at *3 (Tex. App.—Fort Worth Mar. 9, 2006, no pet.)

(mem. op.) (concluding plaintiff’s testimony detailing his specific injuries and averring

that the injuries were caused by the event sued upon was legally sufficient to establish

causal nexus between event sued upon and injuries); Transport Concepts, 748 S.W.2d at

305 (finding legally sufficient evidence of causal nexus between accident and plaintiff’s

injuries based on plaintiff’s unrefuted testimony that “his injuries were the result of
                                           7
the accident”). Appellees’ allegation in their petition that their “severe personal

injuries” were “a result of the collision” does not supply the needed proof. See

Morgan, 675 S.W.2d at 732–33 (recognizing in default-judgment review that petition

allegation established causative link between defendant’s conduct and cause of action

but did not establish link between cause of action and injuries); see also Tex. R. Civ.

P. 243 (requiring proof of unliquidated damages after default).         We sustain the

Alvarezes’ third issue.

       The Alvarezes request either rendition or a remand. Because we are sustaining

a no-evidence issue following an uncontested, no-answer default judgment, the

appropriate disposition is a remand for new trial on the issue of unliquidated

damages.4 See Holt Atherton, 835 S.W.2d at 86.

                                C. ATTORNEY’S FEES

       The Alvarezes contend in their second issue that the default judgment was in

error because it awarded Appellees attorney’s fees even though such fees are not

recoverable in negligence actions and even though Appellees did not plead for such

relief. Appellees respond that equity allows the recovery of their attorney’s fees.

       Attorney’s fees are recoverable only if allowed by contract or by statute. Tony

Gullo Motors I, LP. v. Chapa, 212 S.W.3d 299, 310–11 (Tex. 2006). “Absent a contract

       4
        Because the case will be remanded for a new trial on the unliquidated-damages
issue, we need not address the Alvarezes’ first issue, challenging the sufficiency of the
evidence to support the amount of Appellees’ personal-injury damages. See Tex. R.
App. P. 47.1.

                                            8
or statute, trial courts do not have inherent authority to require a losing party to pay

the prevailing party’s fees.” Id. at 311. A negligence claim, which was the sole claim

raised by Appellees, does not confer a right to recover attorney’s fees. See, e.g., Gulf

States Utils. Co. v. Low, 79 S.W.3d 561, 568 (Tex. 2002); Parkway Co. v. Woodruff,

901 S.W.2d 434, 441 n.9 (Tex. 1995). To the extent Appellees now rely on equity to

provide authorization for the recovery of their attorney’s fees, they have failed to

establish the equitable prerequisites, namely that they pleaded for such recovery or

that their claim was based on the common-fund doctrine or on the attorney-fees-as-

damages theory.5 See Michol O’Connor, O’Connor’s Texas Causes of Action ch. 45–D,

§§ 1–2 (2019). Accordingly, Appellees may not recover their attorney’s fees even as

prevailing parties. We sustain issue two.

                                 III. CONCLUSION

      Although the causative link between the Alvarezes’ conduct and the car

accident is established by default, Appellees proffered legally insufficient evidence that

their injuries were caused by or a result of the car accident. And Appellees’ negligence

claim does not entitle them to an award of attorney’s fees. Therefore, the default

      5
        We do not hold that the equitable exception allows the recovery of a prevailing
party’s attorney’s fees even in the absence of a contract or authorizing statute.
Indeed, the Texas Supreme Court’s language in Gullo and that court’s failure to
expressly adopt or reject this equitable theory indicate that equity does not extend this
far. 212 S.W.3d at 311; see Naschke v. Gulf Coast Conference, 187 S.W.3d 653, 655 (Tex.
App.—Houston [14th Dist.] 2006, pet. denied). We hold, only for the purposes of
this appeal, that if attorney’s fees are authorized on an equitable basis, Appellees failed
to meet its requirements.

                                            9
judgment as to unliquidated damages and attorney’s fees cannot stand. We reverse

the trial court’s July 16, 2019 order granting Appellees’ motion for default judgment in

part and remand this case to that court for a new trial solely on the existence of a

causative nexus between the accident and Appellees’ injuries and, if one is established,

for a new trial on the amount of Appellees’ unliquidated damages. See Tex. R. App. P.

43.2(d), 43.3(a). The portion of the order granting default judgment regarding the

Alvarezes’ liability for the accident is affirmed. See Tex. R. App. P. 43.2(a).


                                                        /s/ Lee Gabriel

                                                        Lee Gabriel
                                                        Justice

Delivered: February 13, 2020




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