REVERSE and RENDER; and Opinion Filed May 22, 2013.




                                          S   In The
                                        Court of Appeals
                                 Fifth District of Texas at Dallas

                                       No. 05-12-00725-CV

                              ELITE DOOR & TRIM, INC., Appellant
                                                V.
               DEIDREE TAPIA D/B/A TAPIA CONSTRUCTION, Appellee

                       On Appeal from the County Court at Law No. 1
                                   Dallas County, Texas
                           Trial Court Cause No. CC-09-01503-A

                                  MEMORANDUM OPINION

                       Before Justices Lang-Miers, Murphy, and Fillmore
                                Opinion by Justice Lang-Miers

       Appellant Elite Door & Trim, Inc. (Elite) sued appellee Deidree Tapia d/b/a Tapia

Construction (Tapia) in connection with Tapia’s work on a construction project, asserting

multiple causes of action including breach of contract and negligence. Tapia did not answer and

Elite sought a default judgment. The trial court heard evidence of Elite’s damages and signed a

take-nothing judgment against Elite. On appeal Elite argues that (1) the trial court wrongly

concluded that the evidence was insufficient to support certain elements of Elite’s claims, (2) the

trial court’s take-nothing judgment was erroneous, and (3) the trial judge should be ordered to

pay $15,000 for Elite’s attorneys’ fees. We sustain Elite’s first two issues and reverse and render

judgment in favor of Elite.
                                                              BACKGROUND

           This case has a long history involving multiple appellate proceedings before this Court.

The underlying factual and procedural backgrounds are explained in detail in our opinion in the

prior appeal, Elite Door & Trim, Inc. v. Tapia, 355 S.W.3d 757 (Tex. App.—Dallas 2011, no

pet.), and our opinion in a prior mandamus proceeding, In re Elite Door & Trim, Inc., 362

S.W.3d 199 (Tex. App.—Dallas 2012, orig. proceeding), and we do not recount them here.

           After this Court’s most recent remand the trial court conducted a hearing at which Elite’s

president, Wayne Beeler, testified. 1 According to Beeler, Elite was hired by a general contractor

for $275,000 to install doors, trim, and hardware in a new condominium complex.                                                             Elite

subcontracted part of the labor to Tapia for approximately $50,000. At some point the owner of

the condominium complex initiated an arbitration proceeding against the general contractor, and

the general contractor joined several subcontractors, including Elite, as defendants in the

arbitration. In the arbitration the condominium owner and the general contractor sought $1

million in damages from Elite, and Elite counterclaimed against the general contractor for

$96,141 due and owing under the terms of Elite’s subcontract. The arbitration was later resolved

by agreement. As part of the settlement Elite’s insurance carrier agreed to pay $45,000 to the

condominium owner to settle the claims against Elite, and the general contractor agreed to pay

$10,000 to settle Elite’s counterclaim.

           According to Beeler, Tapia’s installation work was the source of the complaint against

Elite in the arbitration and the reason that the general contractor did not pay Elite the full price of

its contract. Beeler testified that Elite’s damages were $86,141 because that is the amount of


     1
        In its findings of fact and conclusions of law the trial court stated that “the purpose of this hearing was somewhat unclear” because in our
opinion in Elite Door & Trim, Inc. v. Tapia, 355 S.W.3d 757 (Tex. App.—Dallas 2011, no pet.), this Court “overruled Elite’s contention that the
trial court erred by refusing to hear evidence of damages.” In the prior opinion we concluded that the issue of whether the trial court erred by
refusing to hear evidence of damages was not preserved for review in the prior appeal because Elite did not make an offer of proof. Id. at 768.
We did not conclude that the trial court was correct when it refused to hear evidence of damages.



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Elite’s counterclaim against the general contractor that remained unpaid after the arbitration

settlement. Beeler and his counsel also testified that Elite incurred approximately $32,200 in

reasonable and necessary attorneys’ fees because Elite had to hire counsel when it was named in

an arbitration that arose from Tapia’s defective work, and because Elite had to hire counsel to

pursue claims against Tapia. Elite’s counsel also testified that based on a rate of six percent,

$12,049.74 is the appropriate amount of prejudgment interest in this case. Tapia did not appear

at the hearing.

           After the hearing the trial court rendered a take-nothing judgment against Elite in which it

stated, among other things, that the evidence was insufficient to support various elements of

Elite’s causes of action. The trial court also issued findings of fact and conclusions of law.

Among other things, the trial court essentially found that Elite did not present competent

evidence of its damages and was not entitled to attorneys’ fees.

           Elite timely filed its notice of appeal. Tapia did not file a brief in this appeal.

                                                                  ANALYSIS

           First Issue: The Trial Court’s Liability Findings

           In its first issue Elite argues that the trial court erred as a matter of law when it included

13 separate findings in its final judgment indicating that Elite failed to prove liability because it

failed to prove various non-damages elements of its claims against Tapia, including breach of

contract, negligence, and breach of warranty. 2 Elite argues that because Tapia did not file an

answer the findings are erroneous and that the only relevant issue was the amount of Elite’s

unliquidated damages. We agree with Elite.

           The findings at issue are erroneous as a matter of law because they address the elements

of Elite’s claims that were admitted by Tapia by default. In the case of a no-answer default, a

     2
       We note that the findings as to Tapia’s liability were erroneously included in the trial court’s judgment. See TEX. R. CIV. P.
299a (“Findings of fact shall not be recited in a judgment.”).


                                                                       –3–
defendant’s liability is conclusively established for all causes of action pleaded and all

allegations are deemed admitted except the amount of unliquidated damages. Dolgencorp of

Tex., Inc. v. Lerma, 288 S.W.3d 922, 930 (Tex. 2009) (per curiam). In this case we have already

concluded in our prior opinion that Elite’s petition gave fair notice of the claims against Tapia.

Elite Door & Trim, 355 S.W.3d at 767–78. As a result, the only remaining issue was Elite’s

unliquidated damages and the trial court erred as a matter of law when it issued findings that

Elite failed to prove liability. We resolve Elite’s first issue in its favor.

        Second Issue: The Trial Court’s Take-Nothing Judgment

        In its second issue Elite argues that the trial court’s take-nothing judgment against Elite

was erroneous because the evidence supported its claim for $86,141 in damages, $32,273.75 in

attorneys’ fees, and $12,049.74 in prejudgment interest. We agree with Elite.

        To support its motion for default judgment Elite was required to prove its claim for

unliquidated damages with competent evidence. McCoy v. Waller Group, LLC, No. 05-10-

01479-CV, 2012 WL 1470147, at *1 (Tex. App.—Dallas Apr. 26, 2012, no pet.) (mem. op.); see

also TEX. R. CIV. P. 243 (trial court is required to hear evidence of plaintiff’s unliquidated

damages). “For an unliquidated claim where liability is established, evidence of the total amount

due is sufficient to support an award of damages[.]” Collins Fin. Servs. v. Guerrero, No. 05-07-

01732-CV, 2009 WL 3032479, at *2 (Tex. App.—Dallas Sept. 24, 2009, pet. denied) (mem.

op.) (citing Tex. Commerce Bank, N.A. v. New, 3 S.W.3d 515, 517 (Tex. 1999)). In this case

Beeler testified that Elite’s damages were $86,141, and he provided the basis for calculating that

amount. Elite’s counsel testified Elite incurred a total of $32,273.75 in reasonable and necessary

attorneys’ fees and court costs in the various phases of arbitration and litigation, detailing hourly

rates of those who performed work on the case. Elite’s counsel also testified to the sum of

$12,049.74 in prejudgment interest at a rate of six percent. As a result, we conclude that the

                                                  –4–
evidence was sufficient to support a default judgment in Elite’s favor and that the trial court

erred when it rendered a take-nothing judgment against Elite. We sustain Elite’s second issue.

       Third Issue: Elite’s Request for Attorney’s Fees as Sanction

       In its third issue Elite argues that the trial judge should be ordered to pay $15,000 for

Elite’s attorneys’ fees because “[i]t has taken years of work and multiple mandamuses and

appeals to obtain a no-answer default judgment.” We disagree. To support its claim Elite

primarily relies upon Pulliam v. Allen, 466 U.S. 522 (1984), a case that was later abrogated by

statute. See, e.g., Peters v. Noonan, 871 F. Supp. 2d 218, 226 (W.D.N.Y. 2012) (explaining that

Pulliam was decided before § 1983 was amended to essentially preclude injunctive relief against

a judge for an act or omission taken in the judge’s official capacity absent certain extraordinary

circumstances). We overrule Elite’s third issue.

                                          CONCLUSION

       We resolve Elite’s first and second issues in its favor. We resolve Elite’s third issue

against it. We reverse the trial court’s judgment and render judgment in favor of Elite for

$86,141 in damages, $32,273.75 in attorneys’ fees and court costs, and $12,049.74 in

prejudgment interest.




                                                     /Elizabeth Lang-Miers/
                                                     ELIZABETH LANG-MIERS
                                                     JUSTICE

120725F.P05




                                               –5–
                                         S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

ELITE DOOR & TRIM, INC., Appellant                   On Appeal from the County Court at Law
                                                     No. 1, Dallas County, Texas
No. 05-12-00725-CV          V.                       Trial Court Cause No. CC-09-01503-A.
                                                     Opinion delivered by Justice Lang-Miers.
DEIDREE TAPIA D/B/A TAPIA                            Justices Murphy and Fillmore participating.
CONSTRUCTION, Appellee

       In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and judgment is RENDERED that:
       appellant Elite Door & Trim, Inc. recover from appellee Deidree Tapia d/b/a
       Tapia Construction $86,141 in damages, $32,273.75 in attorneys’ fees and court
       costs, and $12.049.74 in prejudgment interest.
       It is ORDERED that appellant Elite Door & Trim, Inc. recover its costs of this appeal
from appellee Deidree Tapia d/b/a Tapia Construction.


Judgment entered this 22nd day of May, 2013.




                                                     /Elizabeth Lang-Miers/
                                                     ELIZABETH LANG-MIERS
                                                     JUSTICE




                                               –6–
