Appeal from the 165th District Court Harris County, Texas
Trial Court Case No. 2017-58042.
consists of Justices Keyes, Kelly, and Goodman.
V. Keyes Justice.
Zach Krachinski and Ark 84 LLC sued appellants Vortek
Aviation LLC and Wayne Schmitz for breach of contract, fraud,
and several other causes of action, alleging that Vortek and
Schmitz had failed to provide repairs to Krachinski and Ark
84's aircraft as agreed between the parties. Neither
Vortek nor Schmitz filed a timely answer, and the trial court
rendered a default judgment in favor of Krachinski and Ark
84. Vortek and Schmitz filed a motion for new trial asserting
that the judgment did not comport with Krachinski and Ark
84's pleadings. The trial court denied the motion for new
trial by operation of law. Now, on appeal, Vortek and Schmitz
argue: (1) the judgment rendered by the trial court did not
conform to the pleadings; (2) the trial court failed to hold
a hearing on unliquidated damages; and (3) Krachinski and Ark
84 failed to provide evidence of unliquidated damages.
created Ark 84 LLC as a holding company for his 1984 Piper
PA-46-310P Malibu aircraft (the Aircraft). Krachinski and Ark
84 (collectively, Krachinski) engaged Vortek to make some
repairs to the Aircraft and paid $71, 100 in advance. Vortek
is an FAA-Certified Repair Station that operates at David
Wayne Hooks Airport in Harris County, Texas, and Schmitz is
Vortek's president. Krachinski was unhappy with the work
ultimately performed by Vortek because the repairs were
incomplete and took many months longer than the time agreed
to by the parties. Krachinski sought redress by engaging an
attorney to seek completion of the repairs and/or return of
the Aircraft. Krachinski was ultimately able to reclaim the
on September 5, 2017, Krachinski filed suit against Vortek
and Schmitz. His petition identified Vortek, Schmitz, and a
Vortek employee named Ricardo Santiesteban as
defendants. Krachinski alleged that, in December 2015,
"pursuant to a written proposal from Vortek (the
'Agreement'), the parties agreed that Vortek would
install upgraded avionics in the Aircraft" for an
"agreed price [of] $71, 100 for parts and labor."
The petition further alleged that "Defendants required
payment of $60, 900 immediately, allegedly to take advantage
of a promotion being offered by the manufacturer," and
that Krachinski was "told by Defendants, in writing,
that the project would take '6 weeks or less.'"
Krachinski paid the entire $71, 100 in advance and left the
Aircraft with Vortek. However, according to the petition,
"Defendants did not purchase the equipment [from the
manufacturer] as they said they would." Krachinski
alleged that Vortek and Schmitz used his money for other
projects, causing him to miss the discounted price associated
with the manufacturer's promotion, and gave "a
steady stream of excuses" as to why the project was not
proceeding despite the passage of several months.
alleged that Vortek eventually gave him "a written
'promissory,' signed by [Santiesteban] on Vortek
letterhead, which was apparently intended to serve as a
written assurance that the Aircraft would be ready 'by
the end of August 2016.'" Despite this
representation by Vortek, the work was not completed by
August 2016, and "the parties agreed to have another
facility at the airport perform an annual inspection,
independent of the avionics work allegedly being performed on
the Aircraft" by Vortek.
When the inspection was completed and it was time to return
the Aircraft to Defendants' [Vortek and Schmitz's]
facility, for reasons known only to Defendants, they told the
inspection facility they did not want the Aircraft back in
their hangar because Plaintiffs [Krachinski and Ark 84] were
not paying their bills. This blatant lie caused Plaintiffs to
have problems with several business at the airport.
alleged that, because of the problems that arose due to
Vortek's "misrepresentations" about him and the
extreme delays in completing the agreed-upon repairs, he
retained an attorney. Ultimately, it took Krachinski "20
months from when the parties made the Agreement until the
Aircraft was delivered" to him, and there were still
problems with the work that had been performed. Krachinski
alleged that, among other concerns, he had paid for work that
was not done, he had paid for equipment that was not
installed, and some equipment had been installed incorrectly
and had to be corrected.
on these facts, Krachinski alleged causes of action for
breach of contract, breach of implied warranty of good and
workmanlike performance of services, fraud, negligent
misrepresentation, conversion, defamation, business
disparagement, and conspiracy. Regarding his cause of action
for breach of contract, Krachinski alleged:
Plaintiffs had a valid, enforceable written Agreement,
supplemented by both written and oral amendments, which
Defendants breached. Plaintiffs are the proper parties to sue
for the breach of the contract, and have in every respect
performed as agreed. Defendant Vortek breached the contract,
which caused injury to Plaintiffs.
sought actual damages, including:
actual damages for difference in value between the avionics
contracted for and avionics installed, lost rebates worth
thousands of dollars, hangar expenses incurred by Plaintiffs
in Indiana in anticipation of the return of the Aircraft and
necessary to avoid forfeiting hangar space, insurance on the
Aircraft while in Defendants' possession, travel expenses
for a useless trip to Texas, expenses to perform work that
Defendants were paid to do but did not do, expense[s] to
correct problems with the avionics installed by Defendants,
an annual inspection required because six weeks turned out to
be 20 months, value of avionics removed from the Aircraft
that are still the property of Plaintiffs, expenses incurred
to have pilots repeatedly available to test fly the Aircraft
and to diagnose and repair installation problems caused by
Defendants, and reasonable attorney's fees required to
convince Defendants that they had to get the project
completed when they refused to respond to Plaintiffs'
demands (which still took five more months).
also sought exemplary damages under Civil Practice and
Remedies Code chapter 41.003, mental anguish damages, and
"reasonable and necessary costs and attorney's fees
pursuant to Texas Civil Practice and Remedies Code §
37.009 and § 38.001."
petition, Krachinski also applied for a temporary restraining
order and temporary injunction. Krachinski alleged,
"Plaintiffs have just become aware that Defendants have
shut down Vortek and chained the doors to the business. Upon
information and belief, Defendants are in the process of
selling Vortek, or the assets of Vortek, to a foreign
entity." Krachinski sought a temporary restraining order
and temporary injunction to protect Vortek's assets until
a hearing could be held and he could obtain a judgment.
September 7, 2017, Vortek was served with the original
petition through its registered agent, Thomas Kerr. The
return of service was ...