                                   Fourth Court of Appeals
                                           San Antonio, Texas
                                      MEMORANDUM OPINION

                                               No. 04-18-00255-CV

                                              Ronald Carey HODGE,
                                                    Appellant

                                                           v.

                                   Charles W. HANOR and Jean M. Hanor,
                                                Appellees

                        From the 131st Judicial District Court, Bexar County, Texas
                                      Trial Court No. 2017CI17321
                             Honorable Solomon Casseb III, Judge Presiding

Opinion by:         Rebeca C. Martinez, Justice

Sitting:            Sandee Bryan Marion, Chief Justice
                    Rebeca C. Martinez, Justice
                    Irene Rios, Justice

Delivered and Filed: January 2, 2019

REVERSED AND REMANDED

           Ronald Carey Hodge files this restricted appeal from a no-answer default judgment taken

against him by Charles W. Hanor and Jean M. Hanor. On appeal, Hodge contends error is apparent

on the face of the record because no reporter’s record was made of the default judgment hearing. 1

We reverse the trial court’s judgment and remand the cause for a new trial on unliquidated

damages.




1
    Because we sustain this issue, we need not address Hodge’s other issues. See TEX. R. APP. P. 47.1.
                                                                                  04-18-00255-CV


                                         BACKGROUND

       In 2014, Hodge retained Charles Hanor to represent him in several legal matters and

ultimately Hodge owed Hanor $95,159.18 in legal fees. Because Hodge was unable to pay the

legal fees, Hodge and the Hanors entered into a verbal agreement whereby Hodge would satisfy

the legal fees he owed to Hanor by providing the Hanors with wood flooring and cabinetry for the

kitchen, bathrooms, and closets of the Hanors’ home. On September 8, 2017, the Hanors sued

Hodge alleging claims for breach of contract, violations of the Texas Deceptive Trade Practices

Act, negligent misrepresentation, fraud, negligence, and gross negligence. Hodge did not file an

answer.

       On November 8, 2017, the trial court signed a no-answer default judgment awarding the

Hanors $91,945.47 in damages, $45,000.00 in additional damages under the DTPA, and $8,500 in

attorney’s fees for proceedings in the trial court.   The judgment also awarded the Hanors

conditional post-judgment attorney’s fees, including $35,000.00 for proceedings in any court of

appeals and $35,000.00 for proceedings in the Texas Supreme Court. Hodge timely filed this

restricted appeal.

                                      RESTRICTED APPEAL

       In order to prevail in a restricted appeal, Hodge must prove: (1) he filed the notice of

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

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

complained of and did not timely file any post-judgment motions or requests for findings of fact

and conclusions of law; and (4) error is apparent on the face of the record. Pike-Grant v. Grant,

447 S.W.3d 884, 886 (Tex. 2014). The only element at issue in this appeal is whether error is

apparent on the face of the record.



                                              -2-
                                                                                      04-18-00255-CV


       For purposes of a restricted appeal, the face of the record consists of all 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); In re Marriage of Butts, 444 S.W.3d 147, 152 (Tex. App.—Houston [14th

Dist.] 2014, no pet); Flores v. Brimex Ltd. P’ship, 5 S.W.3d 816, 819 (Tex. App.—San Antonio

1999, no pet.). The absence of legally sufficient evidence to support a judgment is reviewable in

a restricted appeal. Norman Commc’ns, 955 S.W.2d at 270; In re Marriage of Butts, 444 S.W.3d

at 152; Flores, 5 S.W.3d at 819.

                               ABSENCE OF REPORTER’S RECORD

       It is undisputed that no reporter’s record was made of the default judgment hearing. In his

first issue, Hodge contends error is apparent on the face of the record based on the absence of a

reporter’s record. The Hanors respond that the absence of a reporter’s record is only reversible

error when damages are unliquidated.

       “Once a default judgment is taken on an unliquidated claim, all allegations of fact set forth

in the petition are deemed admitted, except the amount of damages.” Holt Atherton Indus., Inc. v.

Heine, 835 S.W.2d 80, 83 (Tex. 1992). “A court rendering a default judgment must hear evidence

of unliquidated damages.” Id.; see also TEX. R. CIV. P. 243. “When no reporter’s record has been

taken of the trial court’s evidentiary hearing resulting in a no-answer default judgment, this court

has held error is apparent on the face of the record.” State Farm Cty. Mut. Ins. Co. of Tex. v. Diaz–

Moore, No. 04-15-00766-CV, 2016 WL 6242842, at *3 (Tex. App.—San Antonio Oct. 26, 2016,

no pet.) (mem. op) (citing Stone v. Talbert Operations, LLC, No. 04-14-00008-CV, 2014 WL

7439931, at *1-2 (Tex. App.—San Antonio Dec. 31, 2014, no pet.) (mem. op.); Trenton v.

Hammitt, No. 04-10-00316-CV, 2010 WL 5545423, at *2-3 (Tex. App.—San Antonio Dec. 29,

2010, no pet.) (mem. op.)).



                                                -3-
                                                                                                     04-18-00255-CV


         The Hanors contend the absence of a reporter’s record is not reversible error because their

damages were liquidated. First, we note the judgment awarded the Hanors attorney’s fees which

are unliquidated. In re C.L.W., 485 S.W.3d 537, 542 (Tex. App.—San Antonio 2015, no pet.);

Bastine v. Comm’n for Lawyer Discipline, 252 S.W.3d 413, 416 (Tex. App.—Houston [1st Dist.]

1996, no writ). In addition, “[a] claim is liquidated if the amount of damages caused by the

defendant can be accurately calculated from (1) the factual, as opposed to conclusory, allegations

in the petition, and (2) an instrument in writing.” Arenivar v. Providian Nat’l Bank, 23 S.W.3d

496, 498 (Tex. App.—Amarillo 2000, no pet.); Kao Holdings, L.P. v. Young, 214 S.W.3d 504, 507

n.2 (Tex. App.—Houston [14th Dist.] 2006), aff’d as modified on other grounds, 261 S.W.3d 60

(Tex. 2008) (“A claim is unliquidated if it is not proved by a written instrument such that the

amount of damages can be accurately calculated by the trial court from the instrument and the

factual allegations in the plaintiff’s petition.”). In this case, the Hanors acknowledge in their brief

that they sought to recover benefit of the bargain damages. “[B]enefit-of-the-bargain damages

measure the difference between the value as represented and the value received.” Arthur Andersen

& Co. v. Perry Equip. Corp., 945 S.W.2d 812, 817 (Tex. 1997); Geis v. Colina Del Rio, LP, 362

S.W.3d 100, 112 (Tex. App.—San Antonio 2011, pet. denied). The Hanors did not attach a

contract, invoices or other written instruments to their petition from which such damages could be

calculated; therefore, the Hanors’ claims are unliquidated. 2 See Aavid Thermal Techs. of Tex. v.

Irving Indep. Sch. Dist., 68 S.W.3d 707, 711 (Tex. App.—Dallas 2001, no pet.) (referring to



2
  The Hanors rely on a “Financial Instrument Affidavit” contained in the clerk’s record which was signed by Hanor
and stated, “The financial instrument attached to this affidavit as Exhibit A is a true and correct accounting of the
damages outlined in the Affidavit is Support of Default Judgement [sic] and the Plaintiffs’ Original Petition.”
Attached to the affidavit was a document entitled “Financial Instrument” which consisted of a chart listing costs for
cabinets, flooring, closets, and attorney’s fees. We disagree that this document is an “instrument in writing” allowing
for the calculation of liquidated damages. See Pine Trail Shores Owners’ Ass’n, Inc. v. Aiken, 160 S.W.3d 139, 144-
45 (Tex. App.—Tyler 2005, no pet.) (holding chart listing total amount of unpaid assessments was not written
instrument establishing liquidated claim).

                                                         -4-
                                                                                    04-18-00255-CV


original invoices, a sworn account, and employment contract as written instruments from which

liquidated damages can be calculated); Atwoood v. B & R Supply & Equip. Co., 52 S.W.3d 265,

268 (Tex. App.—Corpus Christi 2001, no pet.) (holding damages were unliquidated where factual

allegations in petition were not supported by any written instrument); Johnson v. Gisondi, 627

S.W.2d 448, 449 (Tex. App.—Houston [1st Dist.] 1981, no writ) (holding claim for breach of an

oral contract was unliquidated where factual allegations in petition were not proved by an

instrument in writing). Therefore, we disagree with the Hanors’ contention that the damages in

this case were liquidated.

                                          CONCLUSION

       Because no reporter’s record was taken of the trial court’s evidentiary hearing resulting in

a no-answer default judgment against Hodge which awarded the Hanors unliquidated damages,

error is apparent on the face of the record. Accordingly, the no-answer default judgment against

Hodge is reversed, and the cause is remanded to the trial court for a new trial on unliquidated

damages.

                                                 Rebeca C. Martinez, Justice




                                               -5-
