Hest Technologies, Inc., Trip Wire Entertainment, LLC, and Chris Canard v. PC Connection Sales Corp. ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00278-CV
HEST TECHNOLOGIES, INC., TRIP APPELLANTS
WIRE ENTERTAINMENT, LLC, AND
CHRIS CANARD
V.
PC CONNECTION SALES CORP. APPELLEE
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FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellants attempt to appeal from the trial court’s denial of their motion for
new trial after a default judgment was entered in favor of Appellee. We dismiss
the appeal for want of jurisdiction. See Tex. R. App. P. 43.2(f).
1
See Tex. R. App. P. 47.4.
I. BACKGROUND
A. FACTUAL BACKGROUND
Appellant Hest Technologies, Inc. developed and sold marketing software,
specifically “[s]weepstakes software utilized by for-profit/nonprofit companies and
entities to promote the sale of their products.” Appellant Chris Canard was the
president and sole shareholder of Hest. Appellant Trip Wire Entertainment, LLC
was a “management entity” that “manage[d] transactions engaged in between
Hest and its customers.” Canard was the “manager” of Trip Wire. Although Trip
Wire and Hest were separate entities, they shared the same business address.
Trip Wire, however, had no employees.
In early 2012, Canard signed a credit application with Appellee PC
Connection Sales Corp. in order to buy over $100,000 worth of computer
hardware. Canard signed the credit application on behalf of Hest as its “owner.”
PC Connection sent the subsequent bills to Hest but shipped the equipment to
Trip Wire. Apparently, Trip Wire “acted as a reseller of the hardware to
downstream customers” for Hest. Ultimately, however, Hest failed to pay PC
Connection for the computer hardware, and PC Connection sent Hest a demand
letter in July 2012. Hest entered into a payment plan with PC Connection under
which Hest agreed to pay PC Connection at least $10,000 per week until the full
amount had been paid. 2
2
At the time PC Connection and Hest entered into the payment plan, PC
Connection stated that Hest’s outstanding balance was $187,914.24. However,
2
B. PROCEDURAL BACKGROUND
After Hest allegedly failed to comply with the payment plan, PC Connection
filed a verified petition against Hest, Trip Wire, and Canard (collectively,
Appellants) on March 14, 2013, raising claims for fraud, fraudulent inducement,
quantum meruit, unjust enrichment, and promissory estoppel. Against Hest, PC
Connection also brought a suit on account and a claim for breach of contract.
PC Connection alleged that Canard was jointly and severally liable with Hest for
breach of contract, fraud, quantum meruit, unjust enrichment, and promissory
estoppel based on the doctrine of alter ego. PC Connection concedes that it did
not allege that Canard was jointly and severally liable with Hest for the liquidated
damages alleged through its suit on account. 3
the invoices attached to PC Connection’s verified petition show that PC
Connection billed for computer hardware totaling $131,953.72.
3
PC Connection asserts, however, that its petition, taken as a whole, put
Canard on notice that it sought to hold him liable under the doctrine of alter ego
for suit on account. We disagree. By specifically delineating the “causes of
action” brought against Hest that it sought to hold Canard liable through alter
ego, PC Connection could not have been more clear that it would not seek to
hold Canard liable for suit on account, which it labeled a “cause of action.”
Although we agree that suit on account is a procedural device setting forth the
evidence necessary to establish a prima facie right of recovery and is not an
independent claim, PC Connection pleaded it as such and, thus, gave Canard
notice that he would not be held to answer for the liquidated damages pleaded
through the suit on account. Cf. Tandan v. Affordable Power, L.P., 377 S.W.3d
889, 894–95 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (explaining when
plaintiff’s verified evidence does not identify the defendant as the debtor on the
account, plaintiff fails to establish prima facie proof of the liquidated debt under
rule 185). See generally Smith v. CDI Rental Equip., Ltd., 310 S.W.3d 559, 566–
67 (Tex. App.—Tyler 2010, no pet.) (discussing evidentiary purpose of rule 185).
3
PC Connection labeled its “suit on sworn account” against Hest as a
“cause of action” and pleaded damages “in the principal sum of $127,914.24.”
PC Connection also sought “its reasonable and necessary attorneys’ fees.” As
required, PC Connection supported its “claim for a liquidated money demand” by
attaching the affidavit of its “Manager of Credit and Collections” to its petition,
showing the remaining amount owed by Hest under the purchase contract. See
Tex. R. Civ. P. 185.
Regarding its breach-of-contract claim against Hest, PC Connection
sought recovery of damages “in excess of the minimum jurisdictional limit of this
court” and its attorneys’ fees. Damages for PC Connection’s claim for “fraud
and/or fraudulent inducement” were pleaded as being “in excess of the minimum
jurisdictional limits of this Court.” PC Connection sought “the reasonable value of
the Products provided to [Appellants]” under its quantum-meruit claim. As unjust-
enrichment damages, PC Connection pleaded “for the full amount of the
Products’ value or worth” and further requested damages “in excess of the
minimum jurisdictional limits of this Court.” PC Connection pleaded “significant
damages . . . which are in excess of the minimum jurisdictional limit of this Court”
under its claim for promissory estoppel. PC Connection’s claims for quantum
meruit, unjust enrichment, and promissory estoppel were pleaded “in the
alternative if necessary.”
4
Appellants failed to answer PC Connection’s suit, and the trial court
entered a default judgment in favor of PC Connection for $127,914.24 “in
liquidated damages”:
The Court therefore finds that the [Appellants] are indebted to [PC
Connection] in the sum of [$127,914.24], plus prejudgment interest
in the amount of [$1,051.35], including costs of court . . . . IT IS,
THEREFORE, ORDERED, ADJUDGED[,] AND DECREED that [PC
Connection] have and recover from [Appellants] the amount of
$127,914.24 in liquidated damages, and the amount of $1,051.35 in
pre-judgment interest . . . with post-judgment interest thereon at the
rate of 5% interest per annum from the date of this judgment until
paid[.]
See Tex. R. Civ. P. 239, 241. The trial court did not hear evidence regarding PC
Connection’s requests for attorneys’ fees or for its unliquidated damages, i.e.,
damages “in excess of the minimum jurisdictional limit” of the trial court, “for the
full amount of [the computer hardware’s] value or worth,” and for “the reasonable
value of [the computer hardware].” See Tex. R. Civ. P. 243. Appellants filed a
motion for new trial, which the trial court denied after a hearing. Appellants filed
a notice of appeal from the denial and argued that the trial court abused its
discretion by denying them a new trial.
After the appeal was fully briefed and submitted, we questioned our
jurisdiction based on the claims and damages requests that apparently had not
been disposed of in the default judgment. We notified the parties that we
believed the default judgment was interlocutory and ordered them to brief the
jurisdictional issue. See Tex. R. App. P. 42.3. Appellants now argue that we do
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not have jurisdiction; PC Connection asserts that the default judgment disposed
of all issues by awarding liquidated damages.
II. APPELLATE JURISDICTION
Unless otherwise statutorily authorized, an appeal may be made only from
a final judgment. See Tex. Civ. Prac. & Rem. Code Ann. §§ 51.012, 51.014
(West Supp. 2013). To be final, a judgment must dispose of all parties and
issues in the lawsuit. Schlipf v. Exxon Corp., 644 S.W.2d 453, 454 (Tex. 1982)
(op. on reh’g). On appeal, the finality of a judgment is determined on its face by
the language of the judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 199
(Tex. 2001). Although it is generally presumed that all pleaded issues were
disposed of by a judgment rendered after a conventional trial on the merits, this
presumption does not apply to default judgments, which are interlocutory in
nature. See Houston Health Clubs, Inc. v. First Court of Appeals, 722 S.W.2d
692, 693 (Tex. 1986) (orig. proceeding); Teer v. Duddlesten, 664 S.W.2d 702,
704 (Tex. 1984); N. E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 897–98
(Tex. 1966).
The default judgment is entitled “DEFAULT JUDGMENT.” It contains no
language indicating an intent to dispose of all issues and parties not otherwise
addressed. See In re Daredia, 317 S.W.3d 247, 248–49 (Tex. 2010) (orig.
proceeding) (holding default judgment containing “Mother Hubbard” language
was final judgment). PC Connection specifically pleaded for liquidated damages
solely in its suit on account brought against Hest. The pleaded liquidated amount
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was not the full amount PC Connection charged Hest for the computer hardware;
rather, the liquidated amount pleaded for and proved by affidavit in its verified
suit on account was the amount that remained due after Hest entered into a
payment plan and partially paid for the computer hardware. PC Connection’s
alter-ego allegations did not extend Hest’s liability to Canard regarding the suit on
account. PC Connection’s remaining damages requests were either tied to the
jurisdictional limits of the trial court or to the value of the computer hardware.
Further, PC Connection pleaded for attorneys’ fees as damages based on
breach of contract and as part of its suit on account. These damages are not
liquidated, and the trial court took no evidence on them. See Tex. R. Civ. P. 243.
Further the liquidated-damages request was only alleged as to Hest, and the
damages sought against Trip Wire and Canard were unliquidated.
A case cited by PC Connection in its jurisdictional brief clearly explains the
law leading us to conclude that the default judgment in favor of PC Connection is
not final based on its claims for attorneys’ fees and unliquidated damages:
When a plaintiff’s claim is liquidated, and proven by an
instrument in writing, the plaintiff may be awarded damages without
the necessity of a hearing or the presentation of evidence. Burrows
v. Bowden, 564 S.W.2d 474, 475 (Tex. Civ. App.—Corpus Christi
1978, no writ); Tex. R. Civ. P. 241. 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. Freeman
v. Leasing Assocs., Inc., 503 S.W.2d 406, 408 (Tex. Civ. App.—
Houston [14th Dist.] 1973, no writ). A default judgment does not
establish allegations pertaining to unliquidated damages. First Nat’l
Bank of Irving v. Shockley, 663 S.W.2d 685, 689 (Tex. App.—
Corpus Christi 1983, no writ). If damages are unliquidated or not
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proved by an instrument in writing, the court must hear evidence as
to damages before a default judgment may be granted. Tex. R. Civ.
P. 243. Attorney’s fees are by their very nature unliquidated. The
reasonableness of attorney’s fees, in the absence of a contract
therefore, is a question of fact and is an unliquidated demand for
which the trial court entering a default judgment should hear
evidence. First Nat’l Bank of Irving, 663 S.W.2d at 691.
Oliphant Fin., LLC v. Galaviz, 299 S.W.3d 829, 836 (Tex. App.—Dallas 2009, no
pet.). For these reasons, we conclude that all issues and damages pleaded for
against each party were not disposed of by the trial court’s default judgment
solely awarding liquidated damages and interest. See McNally v. Guevara, 52
S.W.3d 195, 196 (Tex. 2001) (holding summary judgment not final because it did
not refer to movant’s claims for attorney’s fees and contained no language
indicating trial court intended it to be final). Therefore, the default judgment was
interlocutory and not subject to this court’s review. See, e.g., Boyce v. Mackoy,
No. 06-07-00009-CV, 2007 WL 2891065, at *1–2 (Tex. App.—Texarkana Oct. 5,
2007, no pet.) (mem. op.); Ellison v. Clark, No. 01-97-00612-CV, 1999 WL
82438, at *1 (Tex. App.—Houston [1st Dist.] Feb. 11, 1999, no pet.) (not
designated for publication).
III. DISPOSITION
Generally, once we determine that we lack jurisdiction over an appeal, the
appropriate remedy is dismissal for want of jurisdiction. E.g., Am. Motorist Ins.
Co. v. Fodge, 63 S.W.3d 801, 805 (Tex. 2001); Kilroy v. Kilroy, 137 S.W.3d 780,
783 (Tex. App.—Houston [1st Dist.] 2004, no pet.); see also Tex. R. App. P.
42.3(a), 43.2(f). PC Connection, however, urges us to abate the appeal “to allow
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the trial court to modify the order to make it clearly final as to all claims against all
parties.” Indeed, we have the discretion to allow a non-final order that was
subject to a premature appeal “to be modified so as to be made final.” Tex. R.
App. P. 27.2. But given that the majority of PC Connection’s claims and
damages requests were not disposed of by the default judgment and recognizing
that the trial court could decide to set those remaining issues for trial or to
reconsider and grant Appellants a new trial from the default judgment, abatement
is not a viable option. See, e.g., Crystal Power Co. v. Coastal Salvadoran
Power, Ltd., No. 14-08-00149-CV, 2009 WL 335306, at *1 (Tex. App.—Houston
[14th Dist.] Feb. 12, 2009, no pet.) (mem. op.). This is especially true because
there is no record indication that the trial court intended the default judgment to
be final and appealable. See Evanston Ins. Co. v. D & L Masonry of Lubbock,
Inc., No. 07-10-00253-CV, 2010 WL 3190660, at *2 & n.1 (Tex. App.—Amarillo
Aug. 12, 2010, no pet.) (mem. op.).
Appellants ask us to reverse and render a take-nothing judgment in favor
of Trip Wire and Canard because liquidated damages were pleaded solely
against Hest, rendering the judgment “fundamentally erroneous on [its] face.”
Our lack of jurisdiction gives us few options: dismiss or abate. See McNally, 52
S.W.3d at 196 (remanding to court of appeals to determine whether to abate
appeal for entry of a final judgment under rule 27.2 or to dismiss appeal for want
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of jurisdiction). We decline to exercise our discretion to abate; therefore,
dismissal is appropriate. 4
IV. CONCLUSION
The default judgment did not dispose of all issues and parties raised in PC
Connection’s petition; thus, it was interlocutory. Because the default judgment is
not an appealable interlocutory order, we do not have jurisdiction over this
appeal. We dismiss this appeal for want of jurisdiction.
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and GABRIEL, JJ.
DELIVERED: April 3, 2014
4
Because we have considered, but rejected, Appellants’ request for a
reversal, we deny as moot PC Connection’s motion to strike Appellants’ request.
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