law-unliquidated damages | default judgment |


When a plaintiff's claim is liquidated, and proven by an instrument in writing, the plaintiff may be awarded
damages without the necessity of a hearing or the presentation of evidence. Burrows v. Bowden, 564
S.W.2d 474, 475 (Tex. Civ. App.-Corpus Christ 1978, no writ); Tex. R. Civ. P. 241. A claim is liquidated if
the amount of damages caused by the defendant can be accurately calculated from: (1) the factual, as
opposed to conclusory, allegations in the petition, and (2) an instrument in writing. Freeman v. Leasing
Assocs., Inc., 503 S.W.2d 406, 408 (Tex. Civ. App.-Houston [14th Dist.] 1973, no writ). A default judgment
does not establish allegations pertaining to unliquidated damages. First Nat'l Bank of Irving v. Shockley,
663 S.W.2d 685, 689 (Tex. App.-Corpus Christi 1983, no writ). If damages are unliquidated or not proved
by an instrument in writing, the court must hear evidence as to damages before a default judgment may be
granted. Tex. R. Civ. P. 243. Attorney's fees are by their very nature unliquidated. The reasonableness of
attorney's fees, in the absence of a contract therefore, is a question of fact and is an unliquidated demand
for which the trial court entering a default judgment should hear evidence. First Nat'l Bank of Irving, 663
S.W.2d at 691.

FINLEY OIL WELL SERVICE, INC. v. RETAMCO OPERATING, INC.; from Bexar County; 4th district
04-06-00346-CV, 248 SW3d 314, 10-17-07, pet. denied Jun 2008) (sanctions, standing, unliquidated

v. RETAMCO OPERATING, INC.; from Bexar County; 4th district (04-06-00108-CV, 242 SW3d 67,
pet. denied April 2008)(limitations) (unliquidated damages, proof of damages)
This is an appeal of the trial court's judgment rendered after this court remanded for a new hearing on
unliquidated damages. See Paradigm Oil, Inc. v. Retamco Operating, Inc., 161 S.W.3d 531 (Tex. App.-San
Antonio 2004, pet. denied). The trial court's judgment awards Retamco Operating, Inc. actual damages of
$5,656,409 and attorney's fees of over $700,000, jointly and severally against Paradigm Oil, Inc., Pacific
Operators, Inc., and Pacific Operators of Texas, Inc., and awards exemplary damages of $10,000,000
against each of the defendants. Because the record contains legally insufficient evidence to support the
award of actual damages, we again reverse the judgment and remand the cause to the trial court for a new
trial on damages.
Because we hold there is insufficient evidence to support an award of actual damages, we must also
reverse the awards of exemplary damages and attorney's fees. See Mustang Pipeline Co. v. Driver
Pipeline Co., 134 S.W.3d 195, 201 (Tex. 2004) (per curiam) (holding that to recover attorney's fees in
breach of contract action, claimant must recover actual damages); Twin City Fire Ins. Co. v. Davis, 904
S.W.2d 663, 665 (Tex. 1995) (holding punitive damages are not recoverable unless actual damages
sustained from a tort are proven).