Carlos Alvarez and Judith Alvarez v. Diana O. Agyemang, Janet Acheampong, and Yaw Appiah-Kubi ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00301-CV
___________________________
CARLOS ALVAREZ AND JUDITH ALVAREZ, Appellants
V.
DIANA O. AGYEMANG, JANET ACHEAMPONG, AND YAW APPIAH-KUBI,
Appellees
On Appeal from the 141st District Court
Tarrant County, Texas
Trial Court No. 141-301157-18
Before Gabriel, Bassel, and Womack, JJ.
Memorandum Opinion by Justice Gabriel
MEMORANDUM OPINION
Appellants Carlos and Judith Alvarez (collectively, the Alvarezes) appeal from a
default judgment entered against them and in favor of appellees Diana O. Agyemang,
Janet Acheampong, and Yaw Appiah-Kubi (collectively, Appellees) on their claims
against the Alvarezes for personal injuries arising from a car accident. The Alvarezes
argue that Appellees failed to proffer evidence of a causal nexus between the car
accident and their injuries, did not sufficiently establish the amount of their
unliquidated damages, and were not entitled to recover attorney’s fees. Because we
conclude that Appellees were not entitled to the recovery of their attorney’s fees and
failed to proffer any evidence that their unspecified personal injuries were caused by
the car accident, we reverse the default judgment in part and remand the case to the
trial court for further, limited proceedings.
I. BACKGROUND
On November 6, 2016, Judith was driving a car that was owned by Carlos
when she was involved in an accident with a car carrying Appellees. On July 26, 2018,
Appellees filed a negligence suit to recover damages for their personal injuries, which
they alleged were proximately caused by the 2016 car accident. On November 8,
2018, Appellees served the citations on the Alvarezes. See Tex. R. Civ. P. 106(a).
On April 16, 2019, the trial court entered an order setting Appellees’ petition
for trial during the week of August 12, 2019. On July 3, 2019, Appellees filed a
motion for default judgment and argued that although the Alvarezes had been served
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with citations, they had not appeared in the suit. Attached to the motion were the
returns of service on the Alvarezes, business-records affidavits regarding Appellees’
medical bills, and Appellees’ itemized medical bills from an Arlington hospital. It
appears that the trial court did not hold a hearing on the motion.1
On July 16, 2019, the trial court granted the motion for default judgment and
entered final judgment in favor of Appellees, awarding $3,000 in attorney’s fees and
$59,798.93 in damages. See Tex. R. Civ. P. 239; see also Tex. R. Civ. P. 107(h)
(prohibiting default judgment unless proof of service has been on file with the court
for ten days). The Alvarezes filed notices of appeal from the default judgment on
August 15, 2019—thirty days after judgment. See Tex. R. App. P. 26.1. They now
seek to reverse the default judgment and request either a rendition or a remand for a
new trial because (1) no properly admitted evidence supported the awarded damage
amount, (2) Appellees introduced no evidence to prove a causal nexus between their
injuries and the car accident, and (3) Appellees did not plead for recoverable
attorney’s fees.
The court reporter informed this court that she did “not show that a record
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was taken” in this case. The trial court’s docket sheet does not indicate that a hearing
was held; the order granting default judgment reflects that the trial court “reviewed
the records in this matter” and “consider[ed] the motion.”
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II. PROPRIETY OF DEFAULT JUDGMENT
A. STANDARD OF REVIEW
Typically, a party fails to preserve error in a direct appeal from a default
judgment if the party fails to file a motion for new trial establishing the Craddock
elements. Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. [Comm’n
Op.] 1939); see Massey v. Columbus State Bank, 35 S.W.3d 697, 699 (Tex. App.—
Houston [1st Dist.] 2000, pet. denied) (discussing Tex. R. Civ. P. 324(b)(1) and
Craddock, 133 S.W.2d at 126). The Alvarezes raise none of the Craddock elements and
do not rely on extrinsic evidence in their appellate brief, arguing instead that
Appellees did not proffer any evidence to support their damages and were not entitled
to attorney’s fees as a matter of law. We construe the Alvarezes’ appellate issues to be
directed to the legal sufficiency of the evidence to support the trial court’s default
judgment, which we may consider even in the absence of a motion for new trial. See
In re Marriage of Collins & Tipton, No. 07-06-0314-CV, 2008 WL 3930559, at *2 (Tex.
App.—Amarillo Aug. 27, 2008, no pet.) (mem. op.); Argyle Mech., Inc. v. Unigus Steel,
Inc., 156 S.W.3d 685, 687 & n.1 (Tex. App.—Dallas 2005, no pet.); Dawson v. Briggs,
107 S.W.3d 739, 748 (Tex. App.—Fort Worth 2003, no pet.). See generally Tex. R.
App. P. 38.9 (requiring liberal construction of appellate briefs); Perry v. Cohen,
272 S.W.3d 585, 587 (Tex. 2008) (“[A]ppellate courts should reach the merits of an
appeal whenever reasonably possible.”).
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In a legal-sufficiency review, we consider only the evidence and inferences that
tend to support the finding and disregard all contrary evidence and inferences. Holt
Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex. 1992); see also Dawson, 107 S.W.3d
at 748 (“When a specific attack is made upon the legal or factual sufficiency of the
evidence to support the trial court’s determination of damages in a default judgment,
the appellant is entitled to a review of the evidence produced.”). Anything more than
a scintilla of evidence is legally sufficient to support the finding. See Holt Atherton,
835 S.W.2d at 84. The trial court’s default judgment, entered after the Alvarezes
failed to appear, operated as an admission of all allegations of fact set out in
Appellees’ petition, including a causal nexus between the Alvarezes’ conduct and the
car accident; but the default did not operate as an admission regarding a causal nexus
between the accident and Appellees’ injuries or regarding the amount of Appellees’
unliquidated damages. See Paradigm Oil, Inc. v. Retamco Oper., Inc., 372 S.W.3d 177, 183
(Tex. 2012); Holt Atherton, 835 S.W.2d at 83; Transport Concepts, Inc. v. Reeves,
748 S.W.2d 302, 304–05 (Tex. App.—Dallas 1988, no writ). Thus, Appellees were
required to prove the amount of unliquidated damages. See Tex. R. Civ. P. 243;
Dolgencorp, Inc. v. Lerma, 288 S.W.3d 922, 930 (Tex. 2009). And part of proving the
amount of Appellees’ unliquidated damages was offering competent proof of a causal
nexus between the 2016 car accident and their injuries. See Morgan v. Compugraphic
Corp., 675 S.W.2d 729, 732 (Tex. 1984).
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B. CAUSAL NEXUS BETWEEN ACCIDENT AND INJURIES
The Alvarezes contend that Appellees failed to proffer evidence establishing
that their unliquidated damages were caused by the car accident. As we have
explained, Appellees were required to do so by competent evidence. See id. Appellees
assert that their “medical records evidence,” which was attached to their default-
judgment motion, established a causal nexus between the accident and their personal
injuries. The attached evidence consisted of itemized bills showing the charges
incurred by Appellees at an Arlington hospital on November 6, 2016. These bills
merely list what medical procedures were performed on that date and the charge for
each.2 Regarding Appiah-Kubi, Appellees also attached the bill for an unidentified
surgery performed at the same hospital on September 27, 2018.3
We conclude that this evidence is less than a scintilla of proof that these
medical costs were caused by or a result of the car accident. The bills merely reflect
the fact of the incurred charges. Simply because Appellees received treatment at an
Arlington hospital on the same day as the accident (or two years later) does not equate
to more than a scintilla of evidence of a causative link to the accident. In other
words, the fact of incurred medical costs is not evidence that Appellees’ injuries were
Two examples: “1CT C-SPINE W/O CONTRAS 3702.05” and “1 EMER
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DEPT LEVEL 3 1439.00.”
This “GENERAL SURGERY” occurred two months after Appellees filed suit
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and almost two years after the car accident.
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caused by or a result of the car accident. See A.B.F. Freight Sys., Inc. v. Austrian Imp.
Serv., Inc., 798 S.W.2d 606, 615 (Tex. App.—Dallas 1990, writ denied) (“The damages
must be ascertainable in some manner other than by mere speculation or conjecture,
and by reference to some fairly definite standard, established experience, or direct
inference from known facts.”). This is especially true when, as here, Appellees
proffered no testimony by affidavit or at a hearing about their specific injuries. Cf.
Tex. Commerce Bank, Nat’l Ass’n v. New, 3 S.W.3d 515, 516 (Tex. 1999) (per curiam)
(approving use of affidavits to establish unliquidated damages under Rule 243);
Morgan, 675 S.W.2d at 733 (holding causative link provided by plaintiff’s testimony,
which described her symptoms and explained when they began, even though no
expert medical evidence proffered); SACMD Acquisition Corp. v. Trevino, No. 13-07-
00509-CV, 2009 WL 2541840, at *5 (Tex. App.—Corpus Christi–Edinburg Aug. 20,
2009, no pet.) (mem. op.) (holding plaintiff’s affidavit “establishes a sequence of
events from which the trier of fact may properly infer that [plaintiff’s] fall on
[defendants’] property caused him to suffer injury”); Cotton Patch Café v. McCarty, No 2-
05-082-CV, 2006 WL 563307, at *3 (Tex. App.—Fort Worth Mar. 9, 2006, no pet.)
(mem. op.) (concluding plaintiff’s testimony detailing his specific injuries and averring
that the injuries were caused by the event sued upon was legally sufficient to establish
causal nexus between event sued upon and injuries); Transport Concepts, 748 S.W.2d at
305 (finding legally sufficient evidence of causal nexus between accident and plaintiff’s
injuries based on plaintiff’s unrefuted testimony that “his injuries were the result of
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the accident”). Appellees’ allegation in their petition that their “severe personal
injuries” were “a result of the collision” does not supply the needed proof. See
Morgan, 675 S.W.2d at 732–33 (recognizing in default-judgment review that petition
allegation established causative link between defendant’s conduct and cause of action
but did not establish link between cause of action and injuries); see also Tex. R. Civ.
P. 243 (requiring proof of unliquidated damages after default). We sustain the
Alvarezes’ third issue.
The Alvarezes request either rendition or a remand. Because we are sustaining
a no-evidence issue following an uncontested, no-answer default judgment, the
appropriate disposition is a remand for new trial on the issue of unliquidated
damages.4 See Holt Atherton, 835 S.W.2d at 86.
C. ATTORNEY’S FEES
The Alvarezes contend in their second issue that the default judgment was in
error because it awarded Appellees attorney’s fees even though such fees are not
recoverable in negligence actions and even though Appellees did not plead for such
relief. Appellees respond that equity allows the recovery of their attorney’s fees.
Attorney’s fees are recoverable only if allowed by contract or by statute. Tony
Gullo Motors I, LP. v. Chapa, 212 S.W.3d 299, 310–11 (Tex. 2006). “Absent a contract
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Because the case will be remanded for a new trial on the unliquidated-damages
issue, we need not address the Alvarezes’ first issue, challenging the sufficiency of the
evidence to support the amount of Appellees’ personal-injury damages. See Tex. R.
App. P. 47.1.
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or statute, trial courts do not have inherent authority to require a losing party to pay
the prevailing party’s fees.” Id. at 311. A negligence claim, which was the sole claim
raised by Appellees, does not confer a right to recover attorney’s fees. See, e.g., Gulf
States Utils. Co. v. Low, 79 S.W.3d 561, 568 (Tex. 2002); Parkway Co. v. Woodruff,
901 S.W.2d 434, 441 n.9 (Tex. 1995). To the extent Appellees now rely on equity to
provide authorization for the recovery of their attorney’s fees, they have failed to
establish the equitable prerequisites, namely that they pleaded for such recovery or
that their claim was based on the common-fund doctrine or on the attorney-fees-as-
damages theory.5 See Michol O’Connor, O’Connor’s Texas Causes of Action ch. 45–D,
§§ 1–2 (2019). Accordingly, Appellees may not recover their attorney’s fees even as
prevailing parties. We sustain issue two.
III. CONCLUSION
Although the causative link between the Alvarezes’ conduct and the car
accident is established by default, Appellees proffered legally insufficient evidence that
their injuries were caused by or a result of the car accident. And Appellees’ negligence
claim does not entitle them to an award of attorney’s fees. Therefore, the default
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We do not hold that the equitable exception allows the recovery of a prevailing
party’s attorney’s fees even in the absence of a contract or authorizing statute.
Indeed, the Texas Supreme Court’s language in Gullo and that court’s failure to
expressly adopt or reject this equitable theory indicate that equity does not extend this
far. 212 S.W.3d at 311; see Naschke v. Gulf Coast Conference, 187 S.W.3d 653, 655 (Tex.
App.—Houston [14th Dist.] 2006, pet. denied). We hold, only for the purposes of
this appeal, that if attorney’s fees are authorized on an equitable basis, Appellees failed
to meet its requirements.
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judgment as to unliquidated damages and attorney’s fees cannot stand. We reverse
the trial court’s July 16, 2019 order granting Appellees’ motion for default judgment in
part and remand this case to that court for a new trial solely on the existence of a
causative nexus between the accident and Appellees’ injuries and, if one is established,
for a new trial on the amount of Appellees’ unliquidated damages. See Tex. R. App. P.
43.2(d), 43.3(a). The portion of the order granting default judgment regarding the
Alvarezes’ liability for the accident is affirmed. See Tex. R. App. P. 43.2(a).
/s/ Lee Gabriel
Lee Gabriel
Justice
Delivered: February 13, 2020
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