
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-11-00537-CV


Carol J. Calderoni, Appellant

v.

Moses Vasquez, Appellee




FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
NO. D-1-GN-05-001895, HONORABLE TIM SULAK, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N

		This is a restricted appeal from a no-answer default judgment awarding unliquidated
damages.  Appellant Carol J. Calderoni, defendant below, brings three issues urging reversal of the
judgment on the grounds that (1) the live petition of the plaintiff below, appellee Moses Vasquez,
failed to state any cause of action that would establish her liability to him; (2) the record contains no
evidence that would support the unliquidated damages award; and (3) Vasquez failed to comply with
the affidavit requirements of the Servicemembers Civil Relief Act before taking the default.  We will
reverse the judgment in its entirety and remand.

BACKGROUND
		We take our summary of the underlying facts from Vasquez's live petition, taken
as true in light of Calderoni's default.  See Morgan v. Compugraphic Corp., 675 S.W.2d 729, 732
(Tex. 1984).  Vasquez owned four contiguous lots in South Austin.  His residence was located on
the two lots in the middle (6 and 7), while the outer two lots (5 and 8) were largely unimproved.  At
relevant times, Vasquez "was 81 years old, in poor health," had "failing eyesight," and "questionable
mental acuity" to such an extent that he later became the subject of a guardianship proceeding in the
Travis County probate court.
		In April 2005, Vasquez was approached by two individuals--Cedrick E. Loera, with
whom Vasquez "had a close and long term relationship," and Joseph Calderoni, a licensed real-estate
broker who employed Loera, and whom Loera "brought by to meet [Vasquez] in order to discuss
the sale of [Vasquez's] real estate."  While Vasquez did not desire to sell his house, he agreed to sell
the two outer lots (5 and 8) to Joseph for $120,000 each. (1)  Joseph undertook to draft what Vasquez
thought would be "the necessary paperwork" to effectuate that transaction.
		As it turned out, Joseph drafted, and Vasquez executed, documents that not only
transferred the two outer lots Vasquez had agreed to sell, but also the two middle lots (6 and 7),
along with a ten-year lease of the house that would terminate with Vasquez's death.  In exchange for
lots 6 and 7, Joseph gave Vasquez a note for $200,000--which Vasquez contends is a fraction of its
fair market value--but ultimately deeded those lots back to Vasquez without making any payments.
As for the other lots, Joseph paid Vasquez $40,000 for lot 5 and $45,000 for lot 8, far less than
the $120,000 each to which they had agreed.  Joseph deeded lot 8 to himself, but deeded lot 5 to his
mother, Carol Calderoni, appellant here.
		Vasquez filed suit in May 2005, initially asserting claims solely against Joseph.  In
March 2006, Vasquez filed a second amended petition joining Loera and Calderoni as co-defendants.
Vasquez sought money damages, including sums representing "the difference between what
Defendants paid Plaintiff for the property and what the property is worth," as well as exemplary
damages, attorney's fees, and rescission of the "fraudulent sale."
		A week later, Vasquez non-suited his claims against Joseph and Loera, leaving
Calderoni as the sole defendant.  Though Calderoni was served with citation, she never filed an
answer.  The case remained inactive for approximately five years.  In the interim, a guardian was
appointed for Vasquez, who filed a notice of appearance in the case.  On April 6, 2011, Vasquez,
through his guardian, obtained a default judgment against Calderoni awarding him $75,000, a sum
explicitly "representing the amount by which the sale price agreed by Plaintiff for the sale of lot 5
exceeded the amount actually paid to Plaintiff for such lot."  In August of that year, Calderoni
brought this restricted appeal.

ANALYSIS
		A restricted appeal is a type of direct attack on a default judgment.  See Tex. R.
App. P. 30; General Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942, 943
(Tex. 1991).  As the party filing a restricted appeal, Calderoni must show that:  (1) she brought the
appeal within six months after the trial court signed the judgment; (2) she was a party to the suit;
(3) she did not participate in the hearing that resulted in the complained-of judgment and did not
timely file any postjudgment motions or requests for findings of fact and conclusions of law;
and (4) error is apparent from the face of the record.  See 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, whether error is
apparent from the face of the record, is in dispute here.
		The record, for purposes of a restricted appeal, consists of the clerk's record and the
reporter's record if one was made, and also includes any evidence presented to the trial court before
final judgment.  See Norman Commc'ns v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997)
(per curiam); General Elec., 811 S.W.2d at 944 ("The rule has long been that evidence not before
the trial court prior to final judgment may not be considered in a [restricted appeal] proceeding.").
Error must be apparent from the face of the record, not inferred from the record.  Gold v. Gold,
145 S.W.3d 212, 213 (Tex. 2005) (per curiam).  The scope of our review is the same as in ordinary
appeals; that is, we review the entire case.  Norman, 955 S.W.2d at 270.  This includes evidentiary-sufficiency claims.  Id.
		A plaintiff may take a default judgment against a defendant if the defendant has not
previously answered, as long as the citation and return of service have been on file with the clerk
for 10 days.  Tex. R. Civ. P. 107, 239.  A no-answer default judgment is properly granted if (1) the
plaintiff files a petition that states a cause of action, (2) the petition invokes the trial court's
jurisdiction, (3) the petition gives fair notice to the defendant, and (4) the petition does not disclose
any invalidity of the claim on its face.  Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d 491, 494
(Tex. 1988).  When a no-answer default judgment is rendered, the defendant's liability for all causes
of action pleaded is conclusively established and all allegations of fact set forth in the petition are
deemed admitted, except the amount of unliquidated damages.  Lucas v. Clark, 347 S.W.3d 800, 803
(Tex. App.--Austin 2011, pet. denied) (citing Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922,
930 (Tex. 2009) (per curiam)).  Thus, if the facts set out in the petition allege a cause of action, the
default judgment conclusively establishes the defendant's liability.  Morgan, 675 S.W.2d at 731.
However, when a defendant fails to file an answer and no liability exists against him as a
matter of law on the facts alleged by the plaintiff, then the fact that he has defaulted by failing to
file an answer cannot create liability.  Doubletree Hotels Corp. v. Person, 122 S.W.3d 917, 919
(Tex. App.--Corpus Christi 2003, no pet.).
		In her first issue, Calderoni urges that the district court erred in rendering a
default judgment not only imposing liability, but also awarding $75,000 in unliquidated damages.
She asserts that the award is not supported by legally or factually sufficient evidence and
that, indeed, the record is devoid of any testimony or other evidence regarding damages.  Vasquez
concedes this issue and that the damages award must be reversed, although he emphasizes that
the error would not impact the portion of the judgment imposing liability against Calderoni.  We
agree with the parties that, at a minimum, the damages award must be set aside, and sustain
Calderoni's first issue.
		In her second issue, Calderoni asserts that Vasquez's pleadings are insufficient to
support the default judgment as to liability.  In determining whether a cause of action was pled, the
court must be able, from an examination of the plaintiff's pleadings alone, to ascertain with
reasonable certainty the elements of the plaintiff's cause of action and the relief sought with
sufficient information upon which to base a judgment.  Stoner v. Thompson, 578 S.W.2d 679, 683
(Tex. 1979).  Mere formalities, minor defects, and technical insufficiencies will not invalidate a
default judgment where the petition states a cause of action and gives "fair notice" to the opposing
party of the relief sought.  Id.  When determining whether a pleading properly includes an allegation,
we must look at the pleading from the perspective of the person against whom the pleading is made.
Wilson v. Bloys, 169 S.W.3d 364, 369 (Tex. App.--Austin 2005, pet. denied) (citing Erisman
v. Thompson, 167 S.W.2d 731, 733 (Tex. 1943)).  The purpose of a pleading is to provide the
defendant with fair notice of the cause of action and character of evidence that will be raised at trial.
Fairdale Ltd. v. Sellers, 651 S.W.2d 725, 725 (Tex. 1982); Caruso v. Krieger, 698 S.W.2d 760,
762 (Tex. App.--Austin 1985, no writ).  This has the intended effect of defining the issues that will
be heard.  Murray v. O & A Express, Inc., 630 S.W.2d 633, 636 (Tex. 1982)  Furthermore, when
determining whether a cause of action has been pled, we must be able to determine the elements
of the cause of action from the pleadings alone.  Sellers, 651 S.W.2d at 725.  However, a petition
is sufficient if a cause of action may be reasonably inferred from what is specifically stated in
the petition, even if an element of the action is not specifically alleged.  Wal-Mart Stores, Inc. v. Its,
21 S.W.3d 456, 470-71 (Tex. App.--Austin 2000, pet. denied).
		We have previously summarized the factual allegations in Vasquez's live petition.
They focused exclusively on the conduct of Joseph, aided by Loera, in allegedly seeking out Vasquez
and tricking him into selling property he never intended to sell and selling property for a fraction of
its fair market value.  Joseph and Loera were specifically identified as the actors and wrongdoers.
The sole mention of Calderoni appeared in a paragraph discussing the transactions involving lots 5
and 8.  After an allegation that "Defendant Joseph Calderoni, with the aid of Defendant Loera,
also separately obtained from Plaintiff deeds to lots 5 and 8, for which he paid only $40,000.00 and
$45,000.00 respectively, about a third of their market value," Vasquez added, "Lot 8 Joseph
Calderoni had deeded to himself, and Lot 5 to his mother, Carol Calderoni."
		After pleading these factual allegations, Vasquez purported to plead the elements of
three sets of liability theories:  (1) debt and violations of chapter 1101 of the occupations code, which
were pled solely against Loera and Joseph respectively; (2) theories of common-law fraud, statutory
fraud, and liability under the Texas Theft Liability Act predicated on misrepresentations and
deception by unspecified "Defendants" in inducing Vasquez to enter into the transaction; and (3) a
theory of "conspiracy."  In his pleadings regarding conspiracy, Vasquez complained that "Defendant
Cedrick E. Loera conspired with Defendant Joseph Calderoni to commit this fraud on Plaintiff," in
"obtain[ing] the real property . . . from Plaintiff in a grossly unfair manner," and in breaching a
fiduciary duty Loera was alleged to owe to Vasquez.  Then, in the sole explicit reference to appellant
anywhere in his pleadings of liability theories, Vasquez added, "Defendant Carol Calderoni
benefitted from these unfair acts by obtaining lot 5 at a price far below market value." (2)  None of
these allegations stated a cause of action against Calderoni.
		The elements of a civil conspiracy include (1) two or more persons; (2) an object to
be accomplished; (3) a meeting of minds on the object or course of action; (4) one or more unlawful,
overt acts; and (5) damages as a proximate result.  THPD, Inc. v. Cont'l Imports, Inc., 260 S.W.3d
593, 604-05 (Tex. App.--Austin 2008, no pet.) (citing Massey v. Armco Steel Co., 652 S.W.2d 932,
934 (Tex. 1983)).  Proof of civil conspiracy requires proof of "damages as the proximate result of
the conspiracy."  Id.  The "gist of a civil conspiracy" is the injury that is intended to be caused.
Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854, 856 (Tex. 1968).
One "cannot agree, either expressly or tacitly, to the commission of a wrong which he knows not of."
Id. at 857.  Vasquez failed to allege a meeting of the minds among Calderoni, Joseph, and Loera
as to either a wrongful act or resulting harm.  See id. (reversing court of appeals and affirming
trial court's take-nothing judgment when evidence did not show knowledge or intent to participate
in any wrongdoing).  Vasquez's sole allegation against Calderoni--that Calderoni received property
from Joseph--would not in itself have been unlawful or proof of Calderoni's involvement in any
unlawful acts to bring about that result.  Vasquez did not state a cause of action against Calderoni
for conspiracy.
		For similar reasons, Vasquez's reliance on the proposition that "the partaking of
benefits of a fraudulent transaction makes the participants principals and liable as such," is
misplaced.  First State Bank of Miami v. Fatheree, 847 S.W.2d 391, 396 (Tex. App.--Amarillo
1993, writ denied) (citing Corpus Christi Teachers Credit Union v. Hernandez, 814 S.W.2d 195,
202 (Tex. App.--San Antonio 1991, no writ)).  In Fatheree, there was evidence that the plaintiff
was actually involved in the fraudulent conduct.  Id. at 397 (noting plaintiff's employee "clearly
understood" and participated in the fraudulent scheme).  Again, Vasquez alleged no actual
involvement by Calderoni in any fraudulent acts by Joseph or Loera.
		However, Vasquez suggests that it is enough that he pleaded the elements of
common-law fraud, statutory fraud, and violations of the Theft Liability Act against unspecified
"Defendants."  We disagree.  Vasquez alleges that "Defendants" committed common-law fraud
by "ma[king] a false representation . . . that [Joseph] Calderoni was purchasing only unimproved
lots from Plaintiff when in addition Defendants actually had Plaintiff transfer to Defendant
Joseph Calderoni his house [and] . . . also misrepresented the amount Plaintiff was being paid for
his unimproved lots (5 and 8)," committed statutory fraud by "ma[king] false representations to him
for the purpose of inducing him into this real estate transaction," and violated the theft liability act
by "depriv[ing] Plaintiff of his property by deception" and without his "effective consent."  Read in
context with the specific factual allegations that preceded these pleadings, we disagree that these
pleadings gave fair notice to Calderoni that Vasquez was asserting the liability theories against her,
as opposed to her co-defendants.
		In regard to Vasquez's allegations against "Defendants," Quality Hardwoods, Inc.
v. Midwest Hardwood Corp. is instructive.  No. 02-05-00311-CV, 2007 WL 6194114, at *7
(Tex. App.--Fort Worth June 28, 2007, no pet.) (mem. op.).  In that case, Quality agreed to
warehouse and sell Midwest's inventory to resolve a prior debt.  Id. at *1.  Quality's registered agent
Timothy Mills took a portion of Midwest's inventory and used it to make cabinets he installed in the
home he shared with his wife Diane Mills.  Id.  Eventually, Midwest sued Quality, Timothy Mills,
and Diane Mills asserting theories of conversion, fraud, breach of fiduciary duty, and breach of
contract.  Id. at *2.  Following entry of a default judgment against her, Diane Mills filed a restricted
appeal challenging her liability.  The court of appeals concluded that Midwest's petition stated a
claim against Diane Mills for conversion because it included a factual allegation that Midwest's
inventory was "used by Defendants Timothy S. Mills and Diane Mills personally to make and install
cabinets in their home."  Id. at *4.  To the extent the petition lacked other conversion elements, the
court concluded they were not legally required.  Id.  However, the court of appeals held that the
petition failed to sufficiently allege claims against Diane Mills for fraud, breach of fiduciary duty,
or breach of contract.  Id. at *6-7.  The fraud claim contained only general allegations that "the
Defendants willfully and fraudulently used or sold Plaintiff's hardwoods without authority or
Plaintiff's knowledge."  Diane Mills emphasized that the petition failed to allege that she made
a false representation that she knew to be false.  Id. at *7.  The court of appeals concluded that
Midwest's petition did not state a cause of action against Diane Mills for fraud and, consequently,
that error was apparent on the face of the record.  Id.
		We are persuaded by the analysis in Midwest, which is consistent with the principle
that pleadings must allege facts rather than conclusions.  See, e.g., Village Square, Ltd. v. Barton,
660 S.W.2d 556, 559 (Tex. Civ. App.--San Antonio 1983, writ ref'd n.r.e.) (reversing default
judgment on DTPA claim when pleadings did "not in any way designate or state with particularity
which acts or events were relied upon as a basis for liability" or "show that any act or acts of the
defendants were a producing cause of an injury"); C & H Transp. Co. v. Wright, 396 S.W.2d 443,
446 (Tex. Civ. App.--Tyler 1965, writ ref'd n.r.e.) (reversing default judgment when allegations
amounting to "purely legal conclusion, without facts in support thereof [were not] sufficient to
support the judgment by default"); see also Creedmoor-Maha Water Supply Corp. v. Texas Comm'n
on Envtl. Quality, 307 S.W.3d 505, 525 (Tex. App.--Austin 2010, no pet.) (in analogous context
of reviewing whether pleadings were sufficient to invoke trial court's jurisdiction, observing that
"bare conclusions . . . are not sufficient--the pleader must allege facts"); Bloys, 169 S.W.3d at 369
(holding default judgment for failure to pay note not predicated upon any findings of allegations of
fraud when petition lacked any references to fraud, misrepresentations, or similar conduct).  And,
absent any specific allegation of wrongdoing against Calderoni, or even that she ever had contact
or communications with Vasquez, Vasquez's general allegations that unspecified "Defendants"
defrauded him are, as in Midwest, insufficient standing alone.
		Vasquez also urges that a "totality of the circumstances" analysis of his pleadings
yields the conclusion that those pleadings alleged fraud by Calderoni.  He argues that we applied
such an analysis in Vela v. Marywood, 17 S.W.3d 750, 760-61 (Tex. App.--Austin 2000,
pet. denied).  In Vela, a plaintiff mother raised the affirmative defense of fraud against a purported
voluntary relinquishment of her parental rights.  Id. at 760.  While we acknowledged that fraud "is
an elusive and shadowy term which has been defined in some cases as any cunning or artifice used
to cheat or deceive another," the evidence before the court clearly demonstrated fraudulent conduct
on the part of the defendant adoption agency.  Id.  Specifically, (1) the agency, because of its special
relationship with the mother, owed a duty of complete disclosure; (2) the agency either made
misrepresentations about the adoption process that were false or misleading or failed to disclose
material facts; and (3) the mother was justified in relying on the agency's misrepresentations.  Id.
at 761, 763-64.  On those facts, we held, the plaintiff could maintain an affirmative defense of fraud. 
Vela is inapposite in its posture and unhelpful to Vasquez on its facts.  Because Vasquez's petition
lacks sufficient factual allegations to maintain a cause of action against Calderoni, we sustain
Calderoni's second issue.
		Calderoni suggests that the proper remedy for the defects in Vasquez's liability
pleadings is rendition of judgment in her favor.  She invokes the principle that "incurable"
pleading defects warrant rendition because remand and an opportunity to amend would serve
no legitimate purpose.  See Texas Parks & Wildlife Dep't v. E.E. Lowrey Realty, Ltd., 235 S.W.3d
692, 694 (Tex. 2007) (dismissing claims when allowing respondent to plead additional facts
would not cure jurisdictional defects).  We disagree that Vasquez's pleadings reveal incurable
defects, as opposed to the omission of factual allegations that, if they could be added in good faith,
could cure the defects.  Calderoni also appears to urge more broadly that rendition is the
proper remedy without regard to whether the pleading defects are curable, citing a number of court of
appeals decisions that reversed and rendered default judgments.  We note that some of these
decisions involved incurable pleading defects or evidence that negated essential elements of causes
of action or damages, and are thus distinguishable.  See, e.g., Davenport v. Scheble, 201 S.W.3d 188,
197 (Tex. App.--Dallas 2006, pet. denied) (reversing exemplary damages award in default judgment
premised on legally unviable fraud theory and rendering take-nothing judgment); Texas Dep't of
Pub. Safety v. Six, 25 S.W.3d 368, 370 (Tex. App.--Fort Worth 2000, no pet.) (reversing and
rendering default judgment when judicial admission in pleading made satisfaction of statutory
conditions necessary to obtain relief impossible); Rodriguez v. USS of Tex., Inc., No. 12-06-00398-CV, 2007 WL 2949643, at *3 (Tex. App.--Tyler Oct. 11, 2007, no pet.) (mem. op.) (reversing
default judgment against alleged spouse for breach of contract and rendering take-nothing judgment
when evidence showed contract; (1) did not purport to an agreement between plaintiff and alleged
spouse; (2) did not mention alleged spouse anywhere in body of contract; and (3) did not contain
alleged spouse's signature).  In any event, we believe that the policies that the Texas Supreme Court
has emphasized in Holt Atherton Indus. v. Heine, 835 S.W.2d 80, 86 (Tex. 1992), and its recent
extension of Heine in Dolgencorp, 288 S.W.3d at 930, guide us similarly to opt for remand here
given the "abbreviated and perfunctory" nature of default-judgment proceedings, see id., at least in
the absence of incurable pleading defects.
		In her third and final issue, Calderoni seeks relief from the default judgment based
on what she asserts was Vasquez's failure to comply with the the Servicemembers Civil Relief Act.
50 App. U.S.C.A. § 521 (West 2008) (formerly cited as 50 App. U.S.C.A. § 520) ("the Act"). 
Before a court may enter judgment, the Act requires a plaintiff to file an affidavit (1) stating whether
or not the defendant is in military service and showing necessary facts to support the affidavit; or
(2) if the plaintiff is unable to determine whether or not the defendant is in military service, stating
that the plaintiff is unable to make that determination.  Id. § 521(b)(1).  The Act provides a court
with authority to set aside a judgment entered against active duty servicemembers.  Id. § 521(g)(1).
The Act explicitly limits relief to servicemembers during their "period of military service (or within
60 days after termination of or release from such military service)" and requires a showing that
(1) the servicemember was materially affected by reason of that military service in making a defense
to the action; and (2) the servicemember has a meritorious or legal defense to the action or some
part of it.  Id.
		This Court long ago made clear that a "default judgment, taken without the affidavit
or other requirements of [the Act], is not thereby rendered void, but merely voidable at the
instance of the service man upon proper showing of prejudice and injury."  Mims Bros. v. N.A.
James, Inc., 174 S.W.2d 276, 278 (Tex. Civ. App.--Austin 1943, writ ref'd) (emphasis added).
Calderoni has not shown that she is an active duty member of the military service (or has left the
service within 60 days), nor has she made any attempt to make the required additional showing
of prejudice and injury.  See Commercial Credit Corp. v. Smith, 187 S.W.2d 363, 368 (Tex. 1945)
(denying motion to reopen judgment when claimant offered no proof of prejudice or injury as
required by the Act); Hawkins v. Hawkins, 999 S.W.2d 171, 174 (Tex. App.--Austin 1999, no pet.)
(holding trial court did not abuse its discretion by refusing to set aside divorce decree based solely
on failure to comply with the Act; "[b]ecause the protections of the Act are exclusively for the
benefit of the serviceman, it is only upon his insistence that the judgment may be found to be invalid,
and then only upon the proper showing of prejudice").  Nor has Calderoni suggested that any
noncompliance with the Act would entitle her to rendition, as opposed to the remand to which we
have already held her entitled.  Accordingly, we overrule Calderoni's third issue.

CONCLUSION
		We hold there is error on the face of the record because Vasquez's petition does
not contain sufficient factual allegations to state a cause of action against Calderoni, nor is there
any evidence that could support an award of unliquidated damages if liability was established.  We
reverse the default judgment in its entirety and remand the cause for further proceedings.

						__________________________________________
						Bob Pemberton, Justice
Before Chief Justice Jones, Justices Pemberton and Rose
Reversed and Remanded
Filed:   June 26, 2012
1.   We use Joseph Calderoni's first name to distinguish him from his mother, appellant
Carol Calderoni.
2.   At the conclusion of Vasquez's "conspiracy" theory, he alleged also that Loera had
obtained large sums of money from him "play[ing] upon the intimate relationship he had with
Plaintiff," then refusing to repay them.
