Afﬁrm in part; Reverse in part; Remand; Opinion Filed February 8, 2013.

 

In The
(Euurt of Appeals

Iﬂifﬂi Eistrirt of (Texas at Ballets

No. 05-11-01150-CV

B&R DEVELOPMENT, INC., Appellant
V.
HCBECK, LTD., Appellee

On Appeal from the 298th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 10-00819-M

MEMORANDUM OPINION

Before Justices Moseley, Bridges, and Lang
Opinion By Justice Moseley

B&R Development, Inc. (B&R) ﬁles a restricted appeal of an adverse no—answer default
judgment granted in favor of HCBeck, Ltd. (HCBeck). Asserting four issues on appeal, B&R
argues: (1) the trial court erred by failing to hold a hearing on HCBeck’s claim for unliquidated
damages; (2) the default judgment should be set aside and a new trial ordered because the judgment
violated B&R’s procedural right to proper service and notice, and, separately, because its failure to
appear was not a result of conscious indifference and B&R has a meritorious defense; and (3)
defensive issues on the face of the record should have precluded the trial court from granting the
default judgment. The background and facts of the case are well-known to the parties; thus, we do

not recite them here in detail. Because all dispositive issues are settled in law, we issue this

memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4. We afﬁrm the judgment in part, reverse the
judgment in part, and remand the cause for further proceedings consistent with this opinion.

HCBeck was hired to design and build a hall for a church. HCBeck hired B&R to provide
foundation-related construction services for the project. After it was completed, the hall experienced
foundation problems and HCBeck determined the problems were due to faulty work by B&R.
HCBeck asserts it suffered $68,976 in damages as a result of B&R’s defective work.

On or about January 22, 2010, HCBeck sued B&R for breach of contract and negligence.
Three months later, HCBeck filed a motion for substituted service of process. In its motion, HCBeck
stated it had attempted to serve process on B&R’s registered agent located at 9137 Gunnison Drive,
Dallas, Texas, 75231—4815. The constable who attempted to serve the petition determined the
Gunnison address was not longer valid and the property was vacant. Counsel for HCBeck then
provided the constable with the registered agent’s home address. Although the constable attempted
service on four occasions at the residence, he was unsuccessful. HCBeck ﬁled a motion requesting
service be perfected through the Secretary of State. After the trial court granted the motion on June
20, 2010, HCBeck perfected service through the Secretary of State. The Secretary of State attempted
to forward the citation to B&R’s registered agent’s address at 9137 Gunnison Drive, Dallas, Texas,
7523 1-4815; the process was returned to the Secretary of State on August 2, 2010, with the notation
“Unclaimed.”

On October 8, 2010, HCBeck moved for default judgment against B&R and requested
damages in the amount of $68,976 plus interest, costs, and attorney’s fees. To support its damages
request, HCBeck attached an afﬁdavit with supporting documentation to its motion. The trial court
did not conduct a hearing on the motion. Six months later, in April 2011, the trial court granted

HCBeck’s motion for default judgment and awarded, among other things, $68,976 in damages

against B&R for breach of contract. B&R did not file a motion for new trial. Instead, on August 29,
2011, B&R ﬁled a notice of restricted appeal.

To reverse the default judgment in this restricted appeal, B&R must establish (1) it ﬁled the
notice of the restricted appeal within six months after the judgment was signed; (2) it was a party to
the underlying lawsuit; (3) it did not participate in the hearing that resulted in the judgment
complained of and did not timely ﬁle any post-judgment motions or requests for ﬁndings of fact or
conclusions of law; and (4) any error is apparent on the face of the record. See Brown v. 0gbolu,
331 S.W.3d 530, 533 (Tex. App—«Dallas 2011, no pet.) (citing TEX. R. APP. P. 26.1(c), 30;
Alexander v. Lynda ’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004)). Only the fourth element is
disputed in this appeal.

In its fourth issue, B&R asserts the trial court erred by granting the default judgment because
“there were [statute of] limitations issues on the face of the record.” Limitations is an afﬁrmative
defense, TEX. R. CIV. P. 94, that is waived if not pled. See G.R.A.V.I.T.Y. Enters, Inc. v. Reece
Supply C0., 177 S.W.3d 537, 544 (Tex. App.—-Dallas 2005, no pet.). Because B&R did not file any
response to the suit, it did not plead a limitations defense. Likewise, B&R did not otherwise assert
a limitations defense at any point in the proceedings. Accordingly, even if the record might support
an affirmative defense, absent B&R pleading that defense, the trial court did not err by entering a
default judgment against B&R. We overrule B&R’s fourth issue.

In its ﬁrst issue, B&R argues the trial court erred by awarding unliquidated damages without
conducting an evidentiary hearing. HCBeck responds that the damages are liquidated and, therefore,
no hearing was required. When a no-answer default judgment is taken, all material facts in the
petition are deemed admitted, except for the amount of any unliquidated damages. Aavid Thermal

Techs. 0f Tex. v. Irving Indep. Sch. Dist, 68 S.W.3d 707, 710 (Tex. App—«Dallas 2001, no pet.)

If the claim is unliquidated or is not proved by a written instrument, the trial court must hear
damages evidence and render judgment based on that evidence. See TEX. R. CIV. P. 243; Aavid
Thermal Techs, 68 S.W.3d at 711. A claim is unliquidated if the amount of damages cannot be
accurately calculated by the trial court from the factual allegations in the petition and written
instruments. Claims based on repair estimates are unliquidated. See Aavid Thermal Techs., 68
S.W.3d at 711.

HCBeck did not specify the monetary value of its alleged damages in its petition. When it
ﬁled its motion for default judgment, HCBeck requested damages in the amount of $68,976, plus
pre— and post-judgment interest, costs of court, expenses, and attorney’s fees and expenses. To
support its damages request, HCBeck provided the trial court with an affidavit, which had documents
attached to it. The afﬁdavit was executed by one of HCBeck’s employees, the company’s Director
of Risk Management, who averred:

3. Attached to this affidavit are true and [sic] copies of invoices for
foundation repair and associated other repairs. These invoices were
submitted to Plaintiff contemporaneously with the repair work
described therein. The forty—four (44) attached pages accurately
reﬂect the reasonable and necessary cost incurred by Plaintiff to
repair the damages caused by Defendant B&R Development, Inc. at
the Lewisville Church of Christ project.

4. The total cost for these repairs was $68,976.00.

The documents attached to the affidavit relate to the foundation repair work. Two documents state

they each provide a “proposal request” and a “quote”;1 likewise, two other documents state that each

document is a “Turnkey Concrete Proposal,” provides a “Base Bid Total,” and states “Thank you for

 

1For example, the documents from Frank Dale Construction, Ltd. state each document is a “Proposal Request" and that “[t]he above [quoted
prices for work] represents the current quotes for the scope of work described above and is submitted for your approval and issuance of a change
order. The above proposal price has been quoted for normal working hours and is subject to change if not released within seven (7) days . . . [f you

have any questions regarding the scope of work or the individual quotes please let me know as soon as possible." HCBeck did not sign the blanks
below the heading “Acceptance by Owners [sic] Representative."

the Opportunity to Bid This Project.” By their own terms, these documents are bids, proposals, and
quotes, not invoices. Therefore, standing alone, the documents are not sufﬁcient to support a claim
for liquidated damages without additional testimony or evidence. The damages HCBeck requested
were unliquidated and the trial court was required to hold a hearing to hear damages evidence and
render judgment based on that evidence. See id.

HCBeck argues that even if the damages are unliquidated, the Director of Risk
Management’s affidavit alone was sufﬁcient to prove up the damages in the absence of a hearing.
Although unliquidated damages can be proven through an affidavit rather than a live hearing, see
Texas Commerce Bank, Nat’l Ass ’n v. New, 3 S.W.3d 515, 516-17 (Tex. 1999), the Director of Risk
Management’s afﬁdavit and attached documentation are insufﬁcient. While the afﬁdavit does state
HCBeck suffered $68,976 in damages, the attached documents do not support that figure. As
appellee’ s counsel conceded at oral argument, when the bids, quotes, proposals, and other documents
attached to the affidavit are added together, they do not total $68,976.00; they total approximately
$87,000. Thus, while the afﬁdavit states that the Director of Risk Management attached invoices,
those invoices “accurately reﬂect the reasonable and necessary costs” to repair the foundation
damage, and the total cost for the repairs was $68,976, the documents were not invoices, and, either
they do not accurately reflect the reasonable and necessary costs to repair the damage or the damages
were not equal to$68,976. Thus, on the face of the record, the evidence is insufﬁcient to support the
trial court’s award of $68,976. We sustain B&R’s first issue.

We address B&R’s second and third issues together. B&R argues the default judgment
should be set aside and a new trial ordered because the judgment violated B&R’ s due process rights,
namely its procedural right to proper service and notice. B&R proffers two arguments to show

HCBeck did not use reasonable diligence to serve B&R: first, B&R claims the constable’ s afﬁdavit

does not state he attempted to serve B&R at the Gunnison address and, second, the parties’ contract
provided that notices are to be sent to a speciﬁc address (which is not the Gunnison address) and
HCBeck did not attempt service at the contract address. Additionally, B&R asserts that even if it
was properly served, its failure to appear was not a result of conscious indifference and it has a
meritorious defense.

In this appeal, B&R does not challenge the trial court’s order granting HCBeck’s motion for
substituted service. Once the trial court granted HCBeck’s motion for substituted service, HCBeck
was required to strictly comply with the trial court’s order. See generally, TEX. R. CIV. P. 106(b);
Dolly v. Aethos Commc’n Sys, Inc, 10 S.W.3d 384, 388 (Tex. App.—-Dallas 2000, no pet.); Vespa
v. Nat ’l Health Ins. C0., 98 S.W.3d 749, 752 (Tex. App.——-Fort Worth 2003, no pet.). Thus, once
the trial court granted HCBeck’ s motion for substituted service, HCBeck was required to serve B&R
via the Secretary of State; whether the constable’s return of service regarding prior service attempts
was properly completed or whether HCBeck should have attempted service at the contract address
became irrelevant at that time.

B&R then argues it is entitled to a new trial under C raddock v. Sunshine Bus Lines, 134 Tex.
388, 133 S.W.2d 124 (1939), because its failure to answer was not due to conscious indifference,
but was a result of mistake or accident. In C raddock, the Texas Supreme Court stated:

A default judgment should be set aside and a new trial ordered in any case in which

the failure of the defendant to answer before judgment was not intentional, or the

result of conscious indifference on his part, but was due to a mistake or an accident;

provided the motion for new trial sets up a meritorious defense and is ﬁled at a time
when the granting thereof will occasion no delay or otherwise work an injury to the

plaintiff.
C raddock, 133 S.W.2d at 126 (emphasis added). To be entitled to a new trial under Craddock, B&R

was required to ﬁle a motion for new trial with the trial court. See id; Dolgencorp of Texas, Inc. v.

Lenna, 288 S.W.3d 922, 925 (Tex. 2009); Renaissance Park v. Davila, 27 S.W.3d 252, 255, n.7
(Tex. App—«Austin 2000, no pet). But see Dixon v. Sanders, No. 01-10—00814-CV, 2011 WL
2089760 (Tex. App.—-Houston [1st Dist] May 19, 2011, no pet.) (applying the Craddock test to a

restricted appeal). Because B&R did not ﬁle a motion for new trial, we decline to apply the

C raddock test.

We overrule B&R’s second and third issues.

Having resolved B&R’s four issues, we reverse the trial court’s award of damages to HCBeck
for its breach of contract claim and remand this cause to the trial court for further proceedings with

respect to HCBeck’s request for damages on its breach of contract claim. We affirm the trial court’s

judgment in all other respects.

 

111150F.P05

    

QInurt uf Appeala
Iﬂifth Dian-int nf Emma at E31135

JUDGMENT
B&R DEVELOPMENT, INC., Appellant Appeal from the 298th Judicial District
Court of Dallas County, Texas. (Tr.Ct.No.
No. 05-1 1-01 ISO-CV V. Cause No. 10-00819—M).
Opinion delivered by Justice Moseley,
HCBECK, LTD, Appellee Justices Bridges and Lang participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRNIED IN PART and REVERSED IN PART .

We REVERSE the trial court’s award of damages to appellee HCBeck, Ltd. for its breach

of contract claim, and we REMAND for further proceedings as to that claim. We AFFIRM the trial
court’s judgment in all other respects. It is ORDERED that each party bear its own costs on appeal.

Judgment entered February 8, 2013.

 

