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Krawiec v. Holt

Court of Appeals of Texas, Fifth District, Dallas

May 7, 2018

KEVIN HOLT, Appellee

          On Appeal from the County Court at Law No. 2 Dallas County, Texas Trial Court Cause No. CC-16-04250-B

          Before Justices Francis, Evans, and Boatright



         Frank Krawiec, individually and doing business as Frank's Perfect Painting and Remodeling, brings this pro se restricted appeal from a no-answer default judgment. Kevin Holt sued Krawiec for injuries sustained while working for Krawiec. He asserted claims for negligence and gross negligence, and sought actual and punitive damages. Attempts to serve Krawiec were unsuccessful so the trial court ordered that Krawiec be served by substituted service. When Krawiec failed to answer, the trial court granted Holt's motion for default judgment, awarding Holt all the relief sought except for punitive damages. Krawiec filed an untimely motion for new trial, followed by an untimely notice of appeal. On May 9, 2017, this Court ordered that Krawiec's appeal would proceed as a restricted appeal.


         To obtain a reversal in a restricted appeal, four elements must be satisfied: (1) a notice of restricted appeal must be filed within six months of the date of the judgment; (2) by a party to the suit; (3) who did not participate in the trial or hearing that resulted in the judgment and who did not file a timely postjudgment motion; and (4) error must be apparent on the face of the record. Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). The record clearly establishes the first three elements; therefore, we only need to determine if Krawiec has shown error on the face of the record. The record for these purposes consists of all the papers before the trial court at the time the judgment was rendered. Champion v. Estlow, 456 S.W.3d 363, 364 (Tex. App.- Austin 2015, pet. denied).

         Krawiec raises four issues on appeal. In his first issue, Krawiec complains that none of Holt's three motions for default had a certificate of service showing that a copy of the motion had been served on Krawiec. Once a defendant in a no-answer default case is served with process, he has received all the notice to which he is entitled. Cont'l Carbon Co. v. Sea-Land Serv., Inc., 27 S.W.3d 184, 188-89 (Tex. App.-Dallas 2000, pet. denied). The record confirms that Krawiec was served with citation and the petition. Therefore, Holt was not required to notify Krawiec before taking a default judgment.

         Krawiec complains that Holt served documents on attorney Dane Butzer, even though Butzer did not enter an appearance in the lawsuit as Krawiec's attorney. Krawiec concedes that after receiving the petition, he contacted Butzer to represent him in the lawsuit, and Butzer called Holt's attorney to discuss the case. Despite phone calls and an email from Holt's attorney encouraging him to file an answer, Butzer did not enter an appearance or file an answer on behalf of Krawiec. Regardless, the record does not contain any documents with certificates indicating they were served on Butzer. This complaint presents nothing for our review.

         Krawiec argues that the trial court abused its discretion by not holding an evidentiary hearing on Holt's motion for default judgment. He suggests that the trial court should have held a hearing to determine whether Krawiec knew about the lawsuit, had counsel, and if so, why counsel had not made an appearance. Krawiec provides no authority requiring the trial court to conduct such an investigation, and we know of none.

         Krawiec also suggests that the trial court should have held an evidentiary hearing because "a request for hundreds of thousands of dollars should be handled with due diligence and not just signed off on." When a no-answer default judgment is entered, the non-answering party is deemed to have admitted both the truth of all facts properly pleaded and liability on any cause of action properly alleged by those facts. Paradigm Oil, Inc. v. Retamco Operating, Inc., 372 S.W.3d 177, 183 (Tex. 2012). However, this presumption does not apply to unliquidated damages. When a default judgment is taken on an unliquidated claim, all allegations of fact set forth in the petition are deemed admitted except for the amount of damages. Texas Commerce Bank, Nat'l Ass'n v. New, 3 S.W.3d 515, 516 (Tex. 1999).

         In his petition, Holt sought an unspecified amount of damages for past pain and suffering, past physical impairment, past medical expenses, future pain and suffering, future physical impairment, future medical expenses, and punitive damages. These are damages for personal injuries, which are unliquidated. Jones v. Andrews, 873 S.W.2d 102, 107 (Tex. App.-Dallas 1994, no writ). When damages are unliquidated, the trial court must hear evidence as to damages, Tex.R.Civ.P. 243; however, such damages need not be presented with testimony. Whitaker v. Rose, 218 S.W.3d 216, 220 (Tex. App.-Houston [14th Dist.] 2007, no pet.). Affidavits will satisfy the evidence requirement of Rule 243. New, 3 S.W.3d at 516.

         Holt asserts that his damages were supported by medical records and business records affidavits supporting the medical bills that he incurred. These affidavits are not included in our record on appeal; however, the trial court's docket sheet contains notations that such affidavits were filed. Krawiec does not contend that Holt failed to file affidavits supporting his damages. Nor does he challenge the sufficiency of the evidence to support the trial court's determination of damages. He merely challenges the lack of an evidentiary hearing. Because evidence of damages need not be presented with testimony, a hearing was not required. We overrule Krawiec's first issue.

         In his second issue, Krawiec contends that Holt's attorney misled the trial court, denying Krawiec's right of access to the court and due process of law. He claims the record raises the following questions: (1) whether Krawiec was properly served with process, (2) whether Krawiec received proper notification of all documents filed in the case, and (3) whether Krawiec was represented by counsel. Krawiec acknowledges that the trial court granted Holt's motion for substituted service. In accordance with the trial court's order, the process server attached a copy of the citation with a copy of the petition and the order to Krawiec's front door at 14517 Crystal Lake Drive, Little Elm, Texas 75068, and filed her return with the court. Krawiec admits that on October 1, 2016, he retrieved the petition from his front door. We conclude Krawiec was properly served with process. As discussed above, once Krawiec was served with citation and the petition, Holt had no legal duty to notify him before taking a default judgment. No attorney entered an appearance or filed an answer on behalf of Krawiec. Therefore, according to the record, Krawiec was not represented by counsel in this case. We overrule Krawiec's second issue.

         Krawiec next contends that the trial court did not have personal jurisdiction to enter a default judgment against him because he was improperly served with substituted service. "Where in personam jurisdiction is based upon substituted service, the record must affirmatively show strict compliance with the statute authorizing such service." Roberts v. Niekerk, 730 S.W.2d 341, 342 (Tex. App.-Dallas 1987, writ ref'd). The trial court ...

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