Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 44th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-14-03546
Justices Evans, Stoddart, and Boatright
E. BOATRIGHT JUSTICE
a restricted appeal. Appellants Odela Group, LLC
("Odela") and Kevin Lee Jones seek reversal of the
trial court's judgment in favor of appellee Double-R
Walnut Management, L.L.C. ("DWM"), asserting there
was error on the face of the record. For the reasons stated
below, we conclude that DWM's pleadings are sufficient
and that there is no error on the face of the record
regarding notice of trial. With the exception of DWM's
claim under the Texas Theft Liability Act ("TTLA"),
we also conclude that there is legally and factually
sufficient evidence to support the trial court's
judgment. Accordingly, we reverse the trial court's
judgment as to DWM's TTLA claim and render judgment that
DWM take nothing on that claim. In all other respects, we
affirm the trial court's judgment.
written contract dated February 8, 2012, DWM agreed to pay
Odela to repair and restore a building in Dallas that had
been damaged by fire. Jones signed the contract on
Odela's behalf. DWM paid Odela an installment of $150,
000, and Odela began work on the job. After Odela began
installing a new roof on the building, DWM paid a second
installment of $200, 000. The new roof leaked. Odela failed
to fix the problem and walked off the job in July 2012.
attempts to resolve the dispute failed, DWM filed suit
against Odela and Jones, alleging claims for breach of
contract, conversion, fraud, violations of the Deceptive
Trade Practices-Consumer Protection Act ("DTPA"),
and theft of property. Odela and Jones appeared and answered,
but failed to respond to DWM's requests for admission
despite the trial court's order compelling them to do so.
On DWM's subsequent motion for sanctions, the trial court
deemed the requests admitted.
filed a traditional motion for summary judgment on all of its
claims, relying on the deemed admissions and the affidavit of
Bruce Renouard, the owner of DWM. The trial court granted
partial summary judgment on DWM's claims for "breach
of contract, conversion, fraud, theft of property and
violation of DTPA as to liability only."
case then proceeded to trial before the court on the issue of
DWM's damages. Neither Odela nor Jones appeared at the
hearing. Renouard testified to DWM's damages, and the
trial court admitted supporting exhibits into evidence. DWM
also offered evidence of its reasonable and necessary
attorney's fees. The trial court rendered judgment for
DWM, awarding actual damages on DWM's "breach of
contract, conversion, fraud, theft of property and violation
of DTPA claims" of $275, 000 "for payment made for
work never performed"; $66, 632.05 "for repairs to
the work performed by the Defendants"; $164, 700 in lost
rents for the property, and treble damages under the DTPA of
$1, 518, 996.15. The judgment also awarded DWM attorney's
fees, interest, and costs. Neither Odela nor Jones filed any
post-judgment motions or requests for findings of fact and
conclusions of law. On February 25, 2016, they filed this
who does not participate in person or through counsel in a
hearing that results in a judgment may be eligible for a
restricted appeal. Pike-Grant v. Grant, 447 S.W.3d
884, 886 (Tex. 2014); Tex.R.App.P. 30. To sustain a proper
restricted appeal, Odela and Jones must prove: (1) they filed
notice of the restricted appeal within six months after the
judgment was signed; (2) they were parties to the underlying
lawsuit; (3) they did not participate in the hearing that
resulted in the judgment complained of, and did not timely
file any post-judgment motions or requests for findings of
fact and conclusions of law; and (4) error is apparent on the
face of the record. Alexander v. Lynda's
Boutique, 134 S.W.3d 845, 848 (Tex. 2004). Only the
fourth element is at issue in this appeal.
face of the record includes all papers on file in the appeal,
including the clerk's record and any reporter's
record. See Ulusal v. Lentz Eng'g, L.C., 491
S.W.3d 910, 914 (Tex. App.-Houston [1st Dist.] 2016, no
pet.). In a restricted appeal, we afford the appellant the
same scope of review as an ordinary appeal, that is, review
of the entire case, with the restriction that the error must
appear on the face of the record. Norman Commc'ns v.
Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per
curiam). A review of the entire case
includes review of legal and factual insufficiency claims.
Issues and Standards of Review
eight issues, Odela and Jones challenge the sufficiency of
DWM's pleadings and the legal and factual sufficiency of
the evidence to support the trial court's judgment
against each of them. They also contend they did not receive
notice of the trial court's final hearing on damages.
trial court granted a traditional summary judgment on
liability. A party moving for a traditional summary judgment
must show no material fact issue exists and it is entitled to
judgment as a matter of law. Tex.R.Civ.P. 166a(c). We review
a challenge to a traditional summary judgment de novo.
Provident Life & Accident Ins. Co. v. Knott, 128
S.W.3d 211, 215 (Tex. 2003). We must determine whether the
movant met its burden to establish that no genuine issue of
material fact exists and that the movant is entitled to
judgment as a matter of law. Tex.R.Civ.P. 166a(c); Sw.
Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.
2002); City of Houston v. Clear Creek Basin Auth.,
589 S.W.2d 671, 678 (Tex. 1979). We affirm the trial
court's judgment on liability if any theory presented to
the court and preserved for review is meritorious. Joe v.
Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156-57
trial court also rendered judgment for DWM after a bench
trial on damages. "In a nonjury trial, where no findings
of fact or conclusions of law are filed or requested, it is
implied that the trial court made all the necessary findings
to support its judgment." Roberson v. Robinson,
768 S.W.2d 280, 281 (Tex. 1989) (per curiam). These implied
findings may be challenged for legal and factual sufficiency
where, as here, a reporter's record is included in the
record on appeal. Id. We review implied findings by
the same standards we use in reviewing the sufficiency of the
evidence to support a jury's answers or a trial
court's fact findings. Id. In conducting a legal
sufficiency review, we must determine whether the evidence
would enable the factfinder to reach the determination under
review. City of Keller v. Wilson, 168 S.W.3d 802,
827 (Tex. 2005). We will not disturb a finding for factual
insufficiency unless the evidence in support of the finding
is so against the great weight and preponderance of the
evidence that it is clearly wrong and manifestly unjust.
Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.
2001). In the absence of findings of fact and conclusions of
law, the judgment of the trial court must be affirmed if it
can be upheld on any available legal theory that finds
support in the evidence. Rosemond v. Al-Lahiq, 331
S.W.3d 764, 766 (Tex. 2011) (per curiam). We review the trial
court's ruling on questions of law de novo. See,
e.g., Ferry v. Sackett, 204 S.W.3d 911, 912 (Tex.
App.-Dallas 2006, no pet.).
of Final Hearing
their seventh issue, Odela and Jones complain that they did
not receive notice of the trial court's final hearing on
damages. In a post-answer default
case, "well-settled law forbids entering a default
judgment against a defendant that has received no notice of
the hearing on a motion for default judgment." KSNG
Architects, Inc. v. Beasley, 109 S.W.3d 894, 899 (Tex.
App.-Dallas 2003, no pet.).
party claims in a restricted appeal that required notice was
not given or a required hearing was never held, the error
must appear on the face of the record. Gold v. Gold,
145 S.W.3d 212, 213 (Tex. 2004) (per curiam). We have
concluded there was error on the face of the record arising
from lack of notice where the record affirmatively showed
notice was sent to counsel at an incorrect address and was
returned undeliverable, Smith v. Shipp, No.
05-09-01204-CV, 2010 WL 2653733, at *1 (Tex. App.-Dallas Jul.
6, 2010, no pet.) (mem. op); where notice was served on
counsel more than three months after the court ordered that
counsel to withdraw, Shih v. Mei, No.
05-14-00900-CV, 2005 WL 225271, at *2 (Tex. App.- Dallas Feb.
1, 2005, no pet.) (mem. op.); and where service of notice of
a motion for summary judgment was given only eleven days
before the hearing, Shaw v. Radionic Indus., Inc.,
No. 05-07-01333-CV, 2008 WL 4793499, at *2 (Tex. App.-Dallas
Nov. 5, 2008, no pet.) (mem. op.).
silence in the record regarding notice is not error on the
face of the record. In Gold, the court explained
that it "recently reaffirmed that the absence in the
record of any proof that notice of intent to dismiss was sent
to a party is 'just that-an absence of proof of
error.'" Gold, 145 S.W.3d at 213 (quoting
Alexander, 134 S.W.3d at 849). "Accordingly, it
is not error apparent on the face of the record, and could
not support a restricted appeal." Id.
the record is silent regarding whether notice of the final
hearing date was sent to Odela and Jones. The docket sheet in
the clerk's record reflects an order granting partial
summary judgment on July 17, 2015, a nonjury trial setting on
August 24, 2015, and a final hearing on August 28, 2015.
Nothing appears regarding notice of these settings. At the
August 28 hearing, the reporter's record reflects that
the trial court and DWM's counsel discussed the absence
of counsel for Odela and Jones. But there is nothing in either the
clerk's record or the reporter's record to indicate
whether or not Odela and Jones received notice of the hearing
as here, extrinsic evidence would be necessary to establish
that a hearing was held without notice to Odela and Jones,
"the appropriate remedy is by motion for new trial or by
bill of review filed in the trial court so that the trial
court has the opportunity to consider and weigh factual
evidence." Ginn v. Forrester, 282 S.W.3d 430,
432 (Tex. 2009) (per curiam). In Ginn, the court
explained, "the absence of proof in the record that
notice was provided does not establish error on the face of
the record." Id. at 433. "[W]e have
clearly said that silence is not enough." Id.
Because the record is silent regarding notice to Jones and
Odela of the August 28, 2015 hearing, Jones and Odela have
not established error on the face of the record. We decide
Jones's and Odela's seventh issue against them.
their first and second issues, Jones and Odela contend
DWM's operative petition does not support the judgment
against them. A trial court may not grant relief to a party
in the absence of pleadings to support the relief. Stoner
v. Thompson, 578 S.W.2d 679, 682-83 (Tex. 1979). A
pleading must give fair notice of the plaintiff's claims.
Tex.R.Civ.P. 45(b). The purpose of the fair notice
requirement is to provide the opposing party with sufficient
information to enable him to prepare a defense.
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887,
897 (Tex. 2000). When a party fails to specially except to a
pleading, "courts should construe the pleadings
liberally in favor of the pleader." Id.
complaint is limited to
• the fraud claim against Odela;
• the breach of contract claim against Jones;
• the DTPA claim against Jones; and
• the TTLA claim against Jones. 
We discuss each of the challenged pleadings ...