Billy Albert Tomes D/B/A Bexar County Customs v. Justin Thompson, 04-15-00821-CV

Background

Plaintiff Justin Thompson sued defendant Billy Tomes for taking $9,270 for restoration work on Thompson’s 1957 Chevrolet Bel Air and failing to perform the work; alleged it would cost $11,000 to restore the car.
Claims included DTPA violations, common-law fraud, negligence, breach of contract, quantum meruit, and unjust enrichment; petition was unsworn and had no attachments.
Tomes did not answer; trial court held a default-judgment hearing at which Thompson did not appear and only Thompson’s attorney spoke; no witnesses or affidavits were presented.
Counsel made unsworn, unsworn-and-unstated-personal-knowledge statements to the court that largely duplicated the petition’s allegations and asserted damages.
Trial court entered a no-answer default judgment finding liability and awarding multiple damage items, exemplary damages, prejudgment interest, and attorney’s fees.
On restricted appeal, Tomes argued the record shows legally insufficient evidence of unliquidated damages and insufficient evidence for attorney’s fees; the court reversed damages and fees and remanded for a new damages trial but affirmed liability.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether unsworn statements by plaintiff’s counsel at default hearing constitute competent evidence of unliquidated damages	Thompson relied on counsel’s statements and petition allegations as sufficient proof of damages	Tomes argued counsel’s unsworn statements are not evidence, lacked personal-knowledge foundation, and could not substitute for witness testimony when defendant absent	Counsel’s unsworn statements were not evidence because the oath requirement was not waived where defendant and his counsel were absent; damages unproven and awards reversed
Whether trial court needed competent evidence of causal nexus and amount of unliquidated damages before awarding relief	Thompson asserted allegations (and counsel’s recital) established damages and causation	Tomes argued plaintiff failed to prove amount and causation as required for unliquidated damages	Court held plaintiff failed to prove amount and causal nexus; remanded for new trial on damages
Whether exemplary damages, DTPA multiple damages, and attorney’s fees could stand without proven actual damages	Thompson argued awards supported by judgment and counsel’s statements	Tomes argued these awards depend on actual damages and thus fail if actual damages unproven	Court held such awards are contingent on actual damages; reversed exemplary damages, DTPA multiples, and attorney’s fees
Whether error is apparent on the face of the record for restricted appeal	Thompson argued no preservation of error by failing to object at hearing	Tomes argued error is apparent because record lacks competent evidence	Court found error apparent on record (no competent evidence of unliquidated damages) and granted restricted appeal relief as to damages and fees

Key Cases Cited

Alexander v. Lynda’s Boutique, 134 S.W.3d 845 (Tex. 2004) (elements for restricted appeal)
Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269 (Tex. 1997) (face-of-the-record scope in restricted appeals)
Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80 (Tex. 1992) (default judgment admissions; damages hearing required for unliquidated damages)
Morgan v. Compugraphic Corp., 675 S.W.2d 729 (Tex. 1984) (plaintiff must prove amount of unliquidated damages and causal nexus)
Banda v. Garcia, 955 S.W.2d 270 (Tex. 1997) (attorney statements generally not evidence unless sworn; waiver issues)
Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997) (legal-sufficiency standard)
Green Int’l, Inc. v. Solis, 951 S.W.2d 384 (Tex. 1997) (attorney’s fees contingent on recovery of damages)
Nabours v. Longview Sav. & Loan Ass’n, 700 S.W.2d 901 (Tex. 1985) (statutory DTPA damages required before awarding attorney’s fees)