                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-172-CV


CLEMENCIA AGUILAR                                                 APPELLANT

                                        V.

AUTOBUSES LUCANO,                                                  APPELLEES
INC. AND LUCANO
TRANSPORTS, IN ITS ASSUMED
OR COMMON NAME

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          FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

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     In a single issue, Appellant Clemencia Aguilar—who is the plaintiff in the

underlying litigation—contends that the trial court erred by granting a take

nothing default judgment against her.




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         … See Tex. R. App. P. 47.4.
      Aguilar filed suit against Appellees Autobuses Lucano, Inc. and Lucano

Transports for personal injuries she sustained as a passenger on one of

Appellees’ buses when the bus struck another vehicle.         At the same time

Aguilar served Appellees with her original petition, she served Appellees with

requests for admission and other discovery.       Aguilar also paid a jury fee.

Appellees failed to file an answer and failed to answer Aguilar’s discovery.

Approximately eleven months later, Aguilar appeared to give testimony on

unliquidated damages for a default judgment.        After hearing the evidence

presented at the default judgment hearing, the trial court entered a final

judgment against Aguilar, and she perfected this appeal.

      Aguilar concedes that her damages were unliquidated, and she does not

complain that the trial court erred by denying her motion for a default judgment;

she claims only that a trial court cannot, following a default judgment hearing

and in light of the prior payment of a jury fee, sign a judgment for the non-

answering defendant. We agree.

      In the default judgment context, a defendant’s failure to file an answer

is construed as an admission of all allegations of fact set forth in the petition,

except for the amount of unliquidated damages.          Dawson v. Briggs, 107

S.W.3d 739, 748 (Tex. App.—Fort Worth 2003, no pet.); Arenivar v. Providian

Nat'l Bank, 23 S.W.3d 496, 497–98 (Tex. App.—Amarillo 2000, no pet.)

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(citing Tex. Commerce Bank, Nat'l Ass'n v. New, 3 S.W.3d 515, 516 (Tex.

1999)). If the damages being claimed are unliquidated, the court rendering a

default judgment must hear evidence on damages. See Tex. R. Civ. P. 243;

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

court possesses discretion, however, upon hearing such evidence              of

unliquidated damages, to determine that the evidence does not support the

damages claimed or sought by the plaintiff. See Crown Asset Mgmt., L.L.C.

v. Bogar, No. 05-07-01146-CV, 2008 WL 3867638, at *2 (Tex. App.—Dallas

Aug. 21, 2008, no pet. h.) (holding trial court did not abuse its discretion by

denying plaintiff’s motion for default judgment when plaintiff failed to

satisfactorily prove up damages). The trial court does not, however, possess

authority to grant a default judgment for a non-answering defendant based on

a plaintiff’s motion for default judgment. See Tex. R. Civ. P. 239 (authorizing

default judgment against “such defendant if he has not previously filed an

answer”) (emphasis added); Kao Holdings, L.P. v. Young, 261 S.W.3d 60, 65

(Tex. 2008) (recognizing that “[r]ule 239 of the Texas Rules of Civil Procedure

provides for default judgment only against ‘a defendant’” and reversing a

default judgment because “Kao was not a defendant”); see also Freeman v.

Freeman, 160 Tex. 148, 156, 327 S.W.2d 428, 433 (1959), overruled on

other grounds by Mapco, Inc. v. Forest, 795 S.W.2d 700 (Tex. 1990); McDade

                                      3
v. Sams, 545 S.W.2d 205, 207 (Tex. Civ. App.—Houston [1st Dist.] 1976, no

writ), disapproved of on other grounds by El Paso Pipe & Supply Co. v.

Mountain States Leasing, Inc., 617 S.W.2d 189 (Tex. 1981).

      The trial court here possessed discretion to find, as it did, that Aguilar

was not entitled to a default judgment against Appellees and to deny Aguilar’s

motion for a default judgment. See Crown Asset Mgmt., L.L.C., 2008 WL

3867638, at *2. But the trial court was not authorized—on Aguilar’s motion

for a default judgment—to render and sign a judgment for Appellees, especially

in light of Aguilar’s payment of a jury fee. See Tex. R. Civ. P. 239; Kao, 261

S.W.3d at 65; see also, e.g., Freeman, 160 Tex. at 156, 327 S.W.2d at 433;

McDade, 545 S.W.2d at 207. Accordingly, we sustain Aguilar’s sole issue,

reverse the trial court’s judgment, and remand this case to the trial court.




                                                 SUE WALKER
                                                 JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

DELIVERED: November 6, 2008




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