Bennett v. McDaniel, No. 08-0618 (Tex Aug. 20, 2009)
(post-answer default judgment reversed; insufficient proof of damages, remand required in addition to
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.
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)("for each theory of recovery they alleged, it was for
the Bennetts to offer sufficient evidence of actual damages. McDaniel argues the Bennetts introduced no
competent evidence of actual damages. We agree.")
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
Per Curiam Opinion
Links to available online Ebriefs for this case (PDF)
RELATED BLOG POSTS:
Post-answer defaults; what constitutes evidence of reasonable repair costs (Don Cruse Blog)
Deficient Proof-up of Damages in Post-Answer Default Judgment Proceeding Requires Remand in
Addition to Reversal, Texas Supreme Court Says (Jefferson Court Blog)
Bennett v. McDaniel (Tex. 2009)(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
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
OPINION DELIVERED: August 21, 2009