Vortek Aviation LLC and Wayne Schmitz v. Zach Krachinski

Opinion issued July 25, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00165-CV
———————————
VORTEK AVIATION LLC AND WAYNE SCHMITZ, Appellants
V.
ZACH KRACHINSKI AND ARK 84 LLC, Appellees
On Appeal from the 165th District Court
Harris County, Texas
Trial Court Case No. 2017-58042
MEMORANDUM OPINION
Appellees 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.
We affirm.
Background
Krachinski 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 Aircraft.
2
Accordingly, 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.1 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.
Krachinski 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
1
Santiesteban never answered and is not a party to this appeal.
3
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.
Krachinski further alleged:
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.
Krachinski 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.
Based 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
4
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.
Krachinski 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).
Krachinski 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.”
In his petition, Krachinski also applied for a temporary restraining order and
temporary injunction. Krachinski alleged, “Plaintiffs have just become aware that
5
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.
On September 7, 2017, Vortek was served with the original petition through
its registered agent, Thomas Kerr. The return of service was filed with the trial
court on September 9, 2017.
On September 22, 2017, the trial court held a hearing on the application for
temporary injunction. The trial court granted the injunction, ordering that Vortek
and its members, officers, and agents were enjoined from “using, spending,
disposing of or using as collateral, proceeds from the sale of Vortek assets in the
amount of $99,000.00,” i.e., the approximate amount of Krachinski’s damages.
Schmitz was served with the original petition on September 23, 2017, and
the return of service was filed with the trial court on September 25, 2017. Notice of
the temporary injunction order was likewise served on Vortek and Schmitz,
through attorney and registered agent Thomas Kerr, on September 27, 2017, and
the return of service was filed with the trial court that same day.
On October 20, 2017, Krachinski moved for default judgment against
Vortek. In this motion, he sought default judgment “establishing Vortek’s liability
6
and, after a hearing, render[ing] an interlocutory judgment awarding Plaintiffs
damages in the amount of $99,404.00 plus costs, attorney’s fees, and prejudgment
interest.” He sought $20,895.93 as “reasonable and necessary attorney’s fees and
expenses.” As evidence of damages, Krachinski attached exhibits containing his
sworn testimony from the temporary injunction hearing detailing his relationship
with Vortek and the damages suffered, his affidavit relating to out-of-pocket
damages, and affidavits establishing the attorney’s fees expended in “efforts to get
the work completed and get his plane back” and reasonable and necessary
attorney’s fees billed in relation to the lawsuit.
On November 9, 2017, Krachinski moved for default judgment against
Schmitz, again seeking judgment as to Schmitz’s liability and the same damages as
those listed in the motion for default judgment against Vortek. He again attached
transcripts of his testimony and affidavits regarding damages and attorney’s fees.
The amount of attorney’s fees identified in this motion was $26,285.58.
Krachinski’s testimony from the temporary injunction hearing detailed the
nature of his dealings with Vortek, Schmitz, and Santiesteban. Krachinski testified
that he had had specific dealings with Schmitz as the “main owner” of Vortek. And
Kranchinski testified regarding the specific damages he incurred as a result of
Vortek and Schmitz’s failure to perform the work as agreed. Krachinski’s damages
affidavit averred that he had personal knowledge “of the expenses incurred by me
7
and my company [Ark 84] in relation to the fraudulent and unethical actions,
statements and business practices of the defendants in this lawsuit.” He itemized
his damages, identifying items such as $3,500 for the “[d]ifference in value
between equipment installed and equipment paid for”; $4,250 for
“[m]anufacturer’s promotion incentives not received but bargained for”; $7,545 in
hangar expenses; and $16,764 for “[a]viation attorney assistance forcing
Defendants to finish job.” According to the affidavit, Krachinski’s total “out of
pocket” damages amounted to $99,404.
On December 7, 2017, the trial court rendered its final default judgment in
favor of Krachinski and Ark 84. The trial court awarded $99,404.00 as the
“principal amount due” jointly and severally against Vortek, Schmitz, and
Santiesteban. The trial court also awarded Krachinski and Ark 84 $19,900.93 as
attorney’s fees, $995 as costs, and interest.
On December 8, 2017, the day after the trial court rendered default
judgment, Vortek and Schmitz filed their original answer, a general denial.
On January 5, 2018, Vortek and Schmitz filed their motion for new trial. In
this motion, Vortek and Schmitz argued, “Nowhere in Plaintiff’s Original Petition
does Plaintiff [cite] any oral or written agreement directly between Plaintiff and
Defendant Schmitz.” Vortek and Schmitz also complained that the judgment found
all defendants jointly and severally liable but failed to specify “what cause of
8
action, if any, the judgment was based on.” They argued that “there is no pleading
sufficient to support a judgment against Defendant Schmitz under either the
contract or fraud theories” because the pleadings did not identify a contract directly
between him and Krachinski, there were no allegations of fraud committed by
Schmitz, and the fraud claim could not support an award of attorney’s fees.
The motion for new trial further stated:
Defendant Schmitz’s failure to timely file an answer occurred as a
result of accident or mistake and not due to conscious disregard.
Defendant Vortek is no longer an operating entity and has minimal
assets. On advice of counsel, Vortek intended to pursue bankruptcy
and communicated with a bankruptcy attorney. Due to a
miscommunication, and Mr. Schmitz’s departure from the United
States on business, the bankruptcy was not completed and filed prior
to execution of the judgment.
Schmitz and Vortek argued that the court should grant a new trial “because
the judgment entered is not properly supported by the pleadings of Plaintiff” and
the live pleadings did not establish Schmitz’s liability because there were no
allegations that Schmitz himself was a party to the contract or was in privity of
contract with a party. The motion for new trial further argued that Krachinski was
not entitled to all of his hangar fees: “Regardless of location, the aircraft would
need to be hangered. Plaintiff would be entitled to recover excess hangar fees, but
should not recover for both the expenses incurred in Texas and Indiana as the
aircraft had to be stored regardless of flight status.” Schmitz and Vortek made
similar allegations regarding insurance costs and the purported “double recovery”
9
for both “a rebate” and separate “Manufacturer’s Promotion incentives.” They
also argued that Krachinski’s damages affidavit “identifies damages for extra
travel time on business trips . . . and for the refinish of the instrument panel . . .
which are not support by [the] Original Petition.”
Vortek and Schmitz’s motion for new trial was unverified, and the record
does not contain any evidence accompanying it.
Krachinski responded. The response included evidence that Vortek never
filed for bankruptcy and that Krachinski’s lawyer contacted Kerr, the lawyer
representing Vortek and Schmitz, prior to filing the motion for default judgment
and asked whether Vortek intended to file an answer, but received no response.
Thus, Krachinski argued that Vortek and Schmitz could not establish the necessary
elements to have the default judgment set aside.2
The motion for new trial was denied by operation of law.
2
In Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. [Comm’n Op.]
1939), the Texas Supreme Court set forth three requirements that a defaulting
party must satisfy to set aside a default judgment and obtain a new trial: (1) the
defaulting party’s failure to file an answer before judgment was not intentional or
the result of conscious indifference, but was a mistake or accident; (2) the
defaulting party has a meritorious defense; and (3) a new trial will not result in
delay or prejudice to the non-defaulting party. 133 S.W.2d at 126; see also
Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 925–26 (Tex. 2009)
(discussing Craddock factors in context of challenge to trial court’s ruling on
motion for new trial seeking to set aside default judgment).
10
Default Judgment Conforms to the Pleadings
In their first issue, Vortek and Schmitz argue that the trial court erred in
rendering a default judgment in favor of Krachinski because the judgment did not
conform to the pleadings. Specifically, Vortek and Schmitz argue that Krachinski
“failed to plead and provide evidence of a contract between [Krachinski]
and . . . Schmitz.”
We first observe that Vortek’s and Schmitz’s failure to file answers in this
case operated as an admission of all of the material facts alleged in Krachinski’s
petition, except for unliquidated damages. See, e.g., Dolgencorp of Tex., Inc. v.
Lerma, 288 S.W.3d 922, 930 (Tex. 2009); Holt Atherton Indus., Inc. v. Heine, 835
S.W.2d 80, 83 (Tex. 1992). There was no need for Krachinski to have provided
proof of his claims. See Paradigm Oil, Inc. v. Retamco Operating, Inc., 372
S.W.3d 177, 183 (Tex. 2012) (non-answering party in no-answer default judgment
has “admitted both the truth of facts set out in the petition and the defendant’s
liability on any cause of action properly alleged by those facts,” thus, “defendant’s
default . . . establishes liability”); UNL Inc. v. Oak Hills Photo Finishing, Inc., 733
S.W.2d 402, 406 (Tex. App.—San Antonio 1987, no pet.) (“It is not necessary that
the petition plead the evidence upon which the plaintiff relies to establish his
asserted cause of action[.]”). The material question on this issue is whether
Krachinski’s pleading properly alleged causes of action against Vortek and
11
Schmitz and whether the judgment rendered by the trial court conformed to that
pleading.
A. Standard of Review
A default judgment, like all judgments, must conform to the pleadings. See
Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979); Lynch v. Lynch, 540
S.W.3d 107, 134 (Tex. App.—Houston [1st Dist.] 2017, pet. denied); see also TEX.
R. CIV. P. 301 (“The judgment of the court shall conform to the pleadings[.]”).
Where a default judgment is challenged based on the pleadings which support it,
the default judgment is erroneous only if (1) the petition does not attempt to state a
cause of action that is within the jurisdiction of the court; (2) the petition does not
give fair notice to the defendant of the claim asserted; or (3) the petition
affirmatively discloses the invalidity of such claim. Paramount Pipe & Supply Co.
v. Muhr, 749 S.W.2d 491, 494 (Tex. 1988); Dodd v. Savino, 426 S.W.3d 275, 291
(Tex. App.–Houston [14th Dist.] 2014, no pet.); Elite Door & Trim, Inc. v. Tapia,
355 S.W.3d 757, 766 (Tex. App.—Dallas 2011, no pet.).
In determining whether a pleading provides fair notice, we must assess
whether the opposing party can ascertain from the pleading the nature and basic
issues of the controversy and what testimony will be relevant to enable the
opposing party to prepare a defense. See Low v. Henry, 221 S.W.3d 609, 612 (Tex.
2007); Lynch, 540 S.W.3d at 134–45; Tapia, 355 S.W.3d at 766. Where, as here,
12
no special exceptions are filed, we liberally construe the pleadings in favor of the
pleader. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex.
2000); see also Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993) (recognizing that
court should liberally construe petition to determine what causes of action may be
reasonably inferred from the pleading). That an element of a claim has been
omitted is not dispositive. See Boyles, 855 S.W.2d at 601. The fair notice standard
“relieves the pleader of the burden of pleading evidentiary matters with meticulous
particularity.” Tapia, 355 S.W.3d at 766. Rather, a plaintiff’s petition must contain
“a short statement of the cause of action sufficient to give fair notice of the claim
involved.” TEX. R. CIV. P. 47(a); see also Tex. R. Civ. P. 45(b) (pleadings shall
“consist of a statement in plain and concise language of the plaintiff’s cause of
action” and further providing, “That an allegation be evidentiary or be of legal
conclusion shall not be grounds for an objection when fair notice to the opponent is
given by the allegations as a whole”).
In determining whether a pleading is adequate, we examine whether an
opposing attorney of reasonable competence, on review of the pleading, can
ascertain the nature and the basic issues of the controversy. Tapia, 355 S.W.3d at
766. “[A] petition is sufficient if a cause of action may reasonably be inferred from
what is specifically stated in the petition, ‘even if an element of the cause of action
13
is not specifically alleged.’” Dodd, 426 S.W.3d at 292 (quoting Boyles, 855
S.W.2d at 601).
B. Analysis
Here, Schmitz does not argue that Krachinski’s causes of action were
outside the trial court’s jurisdiction or that they were affirmatively invalidated by
the petition. See Muhr, 749 S.W.2d at 494 (stating grounds for challenging default
judgment based on pleadings which support it). Rather, Schmitz argues that
Krachinski failed to plead that Schmitz was a party to a contract with Krachinski or
was in privity of contract with Krachinski. Thus, we consider whether Krachinski’s
pleadings gave Schmitz fair notice of the breach of contract claim.
Krachinski’s pleadings identified both Vortek and Schmitz, as Vortek’s
president, as “Defendants.” Krachinski alleged in the petition 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.
14
Krachinski specifically alleged as a cause of action for breach of contract against
all Defendants:
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.
Regarding damages, Krachinski likewise pled for:
actual damages for the 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).
Thus, Krachinski pled the formation of a valid agreement to which Schmitz
was a “party,” as the president of Vortek; that Krachinski performed under the
agreement; that the “Defendants”—including Schmitz—breached this agreement,
and that the “Defendants’” breach caused him damages. See USAA Tex. Lloyds Co.
v. Menchaca, 545 S.W.3d 479, 501 n.21 (Tex. 2018) (breach of contract action
requires proof of four elements: (1) formation of valid contract; (2) performance by
15
plaintiff; (3) breach by defendant; and (4) damages that plaintiff sustained as result
of breach). Considering the pleading as a whole and liberally construing it, as we
must, it is clear that while Schmitz was not listed with particularity in the pleadings
regarding the breach of contract claim, he was nevertheless identified as a party
and a named defendant on that claim. See Garcia v. Tester, No. 13-15-00498-CV,
2016 WL 4578405, at *5 (Tex. App.—Corpus Christi–Edinburg Sept. 1, 2016, no
pet.) (mem. op.) (holding, “[i]n light of the entire pleading,” that when petition
“clearly identified” individual as defendant, alleged individual was “a co-owner”
of corporate defendant, and petition “then set forth allegations of negligence
pertaining to [the d/b/a identity of the corporate defendant],” pleadings were
sufficient to fairly notify individual defendant of claims being made against him);
UNL Inc., 733 S.W.2d at 406–07 (holding that pleadings that expressly identified
the defendants and alleged generally that “Defendants” engaged in complained-of
conduct were sufficient to give fair notice of claim); see also Tapia, 355 S.W.3d at
766 (fair notice standard “relieves the pleader of the burden of pleading evidentiary
matters with meticulous particularity”).
Krachinski’s pleading here was sufficient for Schmitz to ascertain the nature
and basic issues—including a breach of contract claim—that would be involved in
the lawsuit, and it was sufficient to enable Schmitz to determine what testimony or
other evidence would be relevant to enabling him to prepare a defense. See Low,
16
221 S.W.3d at 612. We conclude that Schmitz received fair notice of the breach of
contract claim against him. See id.
Vortek further argues that the trial court erred in awarding attorney’s fees
against it because Civil Practice and Remedies Code section 38.001 only allows
recovery of attorney’s fees against a corporation or an individual, and it is a limited
liability company. See TEX. CIV. PRAC. & REM. CODE ANN. § 38.001; Alta Mesa
Holdings, L.P. v. Ives, 488 S.W.3d 438, 455 (Tex. App.—Houston [14th Dist.]
2016, pet. denied) (holding that section 38.001 does not authorize recovery of
attorney’s fees in breach of contract action against limited liability company).
However, Krachinski asserted multiple causes of action against Vortek, and Vortek
did not challenge all of the causes of action asserted against it on appeal.
Krachinski also sought attorney’s fees under Civil Practice and Remedies Code
chapter 37, and Vortek does not challenge this basis for the award of attorney’s
fees on appeal.
Generally, an appellant must attack all independent bases or grounds that
fully support a complained-of ruling or judgment, and if the appellant fails to do
so, we must affirm the ruling or judgment. Oliphant Fin. L.L.C. v. Hill, 310
S.W.3d 76, 77–78 (Tex. App.—El Paso 2010, pet. denied); see also Britton v. Tex.
Dep’t of Criminal Justice, 95 S.W.3d 676, 681–82 (Tex. App.—Houston [1st
Dist.] 2002, no pet.) (holding that appellant must attack all independent grounds
17
that fully support an adverse ruling; if appellant fails to do so, we must affirm trial
court’s judgment). “This proposition is predicated upon the understanding that if
an independent ground fully supports the complained-of ruling or judgment, but
the appellant assigns no error to that independent ground,” then the appellate court
must accept the validity of the unchallenged ground, and, “thus, any error in the
grounds challenged on appeal is harmless because the unchallenged independent
ground fully supports the complained-of ruling or judgment.” Oliphant Fin., 310
S.W.3d at 78.
Because Vortek has failed to attack all independent grounds that would fully
support the trial court’s judgment, we must affirm the judgment. See id.; Britton,
95 S.W.3d at 682.
We overrule Vortek and Schmitz’s first issue.
Unliquidated Damages
In their second and third issues, Vortek and Schmitz challenge the trial
court’s award of damages, arguing that the trial court erred in failing to hold a
hearing on unliquidated damages and that Krachinski failed to provide evidence of
unliquidated damages.
Rule of Civil Procedure 243 provides:
If the cause of action is unliquidated or be not proved by an
instrument in writing, the court shall hear evidence as to damages and
shall render judgment therefor, unless the defendant shall demand and
be entitled to a trial by jury in which case the judgment by default
18
shall be noted, a writ of inquiry awarded, and the cause entered on the
jury docket.
TEX. R. CIV. P. 243. For an unliquidated claim where liability is established, as
here, evidence of damages may be supplied by affidavits. See Dodd, 426 S.W.3d at
293; Silverado Truck & Diesel Repair, LLC v. Lawson, No. 05-18-00540-CV,
2019 WL 1467966, at *4 (Tex. App.—Dallas Apr. 3, 2019, no pet.) (mem. op.).
Thus, it was not necessary for the trial court to hold a hearing in order to consider
evidence of unliquidated damages. See Lawson, 2019 WL 1467966, at *4 (holding
that trial court did not err by failing to conduct hearing on unliquidated damages
where it considered affidavit evidence).
Here, Krachinski provided to the trial court a certified copy of his sworn
testimony from the temporary injunction hearing describing the circumstances that
resulted in his loss and identifying his out-of-pocket damages, and he provided an
affidavit, based on his personal knowledge and identifying the total amount owed
as a result of Vortek and Schmitz’s conduct. He also provided affidavits from his
attorney establishing reasonable and necessary attorney’s fees incurred in this case.
Contrary to Vortek and Schmitz’s assertion, this was evidence sufficient to support
the award of unliquidated damages and attorney’s fees. See Tex. Commerce Bank,
Nat’l Ass’n v. New, 3 S.W.3d 515, 517 (Tex. 1999); Huey-You v. Kimp, No. 02-16-
00172-CV, 2018 WL 359633, at *3 (Tex. App.—Fort Worth Jan. 11, 2018, pet.
denied) (mem. op.) (“During a default-judgment proceeding, affidavit testimony
19
will support the award of unliquidated damages if the affidavit avers personal
knowledge of the facts, describes the circumstances that resulted in the loss, and
identifies the total amount owed as a result.”); Dodd, 426 S.W.3d at 293 (same).
Vortek and Schmitz also argue that Krachinski improperly included
attorney’s fees “as an element of actual damages.” However, any error with respect
to awarding damages in an amount greater than had been pled is waived if the
complaining party fails “to object to the amount of the judgment.” Siegler v.
Williams, 658 S.W.2d 236, 240 (Tex. App.—Houston [1st Dist.] 1983, no writ);
see Coleman v. Dean, No. 04–14–00811–CV, 2015 WL 5156921, at *6 (Tex.
App.—San Antonio Sept. 2, 2015, pet. dism’d) (mem. op.) (holding that party
waives complaint that damages award exceeded amount pled in petition when
complaint was not raised in trial court); see also In re Nalle Plastics Family Ltd.,
406 S.W.3d 168, 174–75 (Tex. 2013) (recognizing that attorney’s fees unrelated to
ongoing litigation but instead claimed as an element of damages may be recovered
as compensatory damages); CBIF Ltd. P’ship v. TGI Friday’s Inc., No. 05-15-
00157-CV, 2017 WL 1455407, at *15 (Tex. App.—Dallas Apr. 21, 2017, pet.
denied) (mem. op.) (discussing circumstances in which attorney’s fees may be
considered as part of damage award). “The party making . . . an objection [to the
amount of damages] should do so in a motion to limit the judgment to the amount
pleaded or raise the issue in a motion for new trial.” Siegler, 658 S.W.2d at 240.
20
Vortek and Schmitz failed to raise any complaints regarding the award of
attorney’s fees in their motion for new trial, and, thus, they have waived this
complaint. See id.
We overrule Vortek and Schmitz’s second and third issues.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Kelly, and Goodman.
21