Deficient Proof of (DTPA) Damages in Post-Answer Default Judgment Hearing Requires Remand, Texas Supreme Court Says

Evidence of damages caused by defective roof work was defective enough to require reversal of default judgment in DTPA suit against contractor

Bennett v. McDaniel (Tex. 2009)

In the wake of another recent reversal of a post-answer default judgment, the defendant-friendly Texas Supreme Court agrees with the court of appeals that proof of damages in a consumer complaint against a roofing contractor was insufficient, thus requiring reversal, but disagrees that the plaintiffs should take nothing via rendition of judgment in the contractor's favor on appeal.

Instead, the High Court requires remand to the trial court, thus affording both the defendant and the plaintiffs a second chance to litigate their dispute on the merits of the facts.

Supreme moderation at its best.

A nagging question: How should the empirically-inclined court watchers (be they social scientific bean counters or plaintiff's bar partisans looking for even more stats to validate the court's bias against common folk) code this case in terms of outcome? 50% for the Defense or 50% for the Offense? Half-win for biz; Half-loss for consumers? Not to mention that the Defendant is not of the corporate kind in this case and qualifies as average Joe too, doing business in his own name or dba (his status is not entirely clear since he also has or had an inc. appended to his name).

The Court's per curiam opinion - the sole jurisprudential offering over the course of several weeks - is succinct enough to merit posting in toto.

Here we go:

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Bennett v. McDaniel (Tex. 2009)(per curiam)
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PER CURIAM

In this restricted appeal of a post-answer default judgment, the court of appeals held that the plaintiffs presented legally insufficient evidence of damages and rendered a take-nothing judgment. ___ S.W.3d at ___. We agree that the damages evidence was legally insufficient, but the court of appeals’ disposition was improper under our recent opinion in Dolgencorp v. Lerma, ___ S.W.3d at ___. Accordingly, we reverse the court of appeals’ judgment and remand to the trial court.

Benny and Mary Bennett sued Richard McDaniel alleging that McDaniel had damaged the roof of their home, which the Bennetts had hired him to repair. McDaniel filed an answer denying their allegations, but did not appear when the case was called for trial. At trial, Mary Bennett testified that she received an estimate to repair the roof in the amount of “approximately 72 or $7300.00,” and that she incurred “actual damages of $7500.00 to repair this roof.” The estimate, however, does not appear in the record. The trial court rendered a default judgment in favor of the Bennetts for $7,500 in actual damages, $10,000 in punitive damages, and $1,500 in attorney’s fees.

It is unclear whether the estimate that Mary Bennett referred to was submitted to the trial court and omitted from the appellate record, or whether it was not submitted at all. In either case, we disagree with the court of appeals’ statement that “an estimate without the testimony of the person who created the estimate or other expert testimony is no evidence of the necessity of the repair or the reasonableness of the cost of the repair.” ___S.W.3d___. Such evidence might ordinarily be properly excluded as hearsay, but no hearsay objection was lodged in this case. The record indicates, however, that Mary Bennett merely stated an estimated price and did not testify that the estimate was reasonable. For this reason, we agree with the court of appeals that the Bennetts did not present legally sufficient evidence of damages.

While this petition was pending, we held in Dolgencorp, ___S.W.3d ___, that when the evidence is legally insufficient to support a post-answer default judgment the proper disposition is to remand for a new trial. Accordingly, we grant the Bennetts’ petition for review and, without hearing oral argument, Tex. R. App. P. 59.1, reverse the court of appeals’ judgment and remand this case to the trial court for a new trial.

OPINION DELIVERED: August 21, 2009

BENNY BENNETT AND WIFE, MARY BENNETT v. RICHARD MCDANIEL, INDIVIDUALLY AND D/B/A RICHARD MCDANIEL, INC., D/B/A B.R. ROOFING, A/K/A B&R ROOFING; from Wheeler County; 7th district (07-06-00250-CV, ___ SW3d ___, 04-30-08) (post-answer default judgment, testimony on damages insufficient to support the judgment; default judgment reversed)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals’ judgment and remands the case to the trial court.
Per Curiam Opinion
Links to available online e-briefs for this case (PDF)