H & H Concrete on Demand Austin, LLC v. William A. Thurston and Debbie Thurston

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-24-00530-CV

H & H Concrete On Demand Austin, LLC, Appellant v.

William A. Thurston and Debbie Thurston, Appellees

FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-23-005660, THE HONORABLE F. SCOTT MCCOWN, JUDGE PRESIDING

MEMORANDUM OPINION

H&H Concrete On Demand Austin, LLC, challenges the default judgment in favor of William A. Thurston and Debbie Thurston in their suit alleging improper construction of a pool. In this restricted appeal, H&H Concrete contends that the contaminated concrete “was reportedly installed by H&H Tile and Plaster” is insufficient to support the judgment against H&H Concrete On Demand Austin, LLC, and that the clerk’s notice of default judgment was deficient. We will reverse the judgment and remand for further proceedings on unliquidated damages, and otherwise affirm the judgment.

BACKGROUND

According to their petition, the Thurstons hired Trinity Pools & Scapes, LLC, to build their pool. Alleging that H&H Concrete supplied contaminated concrete that caused pervasive cracking in the pool and that H&H Concrete and Trinity performed ineffective repairs,

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the Thurstons sued both H&H Concrete and Trinity for breach of warranty, negligence, and violations of the Deceptive Trade Practices Act.

Neither defendant filed an answer or appeared at the hearing on the motion for default judgment. The trial court rendered judgment awarding damages of $273,767.58 plus attorney’s fees against the defendants jointly and severally. Trinity is not a party to this appeal.

APPLICABLE LAW

A party can prevail in a restricted appeal if (1) it filed notice of the restricted appeal within six months after the judgment was signed, (2) it was a party to the underlying lawsuit, (3) it did not participate in the hearing that resulted in the judgment complained of and did not timely file any postjudgment motions or requests for findings of fact and conclusions of law, and (4) error is apparent on the face of the record. Insurance Co. of Pa. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009).

“When a no-answer default judgment is rendered, the defendant’s liability for all causes of action pled is conclusively established and all allegations of fact in the petition, except the amount of unliquidated damages, are deemed admitted.” Paradigm Oil, Inc. v. Retamco Operating, Inc., 242 S.W.3d 67, 72 (Tex. App.—San Antonio 2007, pet. denied); see also Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex. 1984). By defaulting on liability, defendants admit that their actions caused the event sued upon, but they do not admit that the event sued upon caused the plaintiff’s injuries. Morgan, 675 S.W.2d at 731–32. “[T]hat the defendant has defaulted does not give the plaintiff the right to recover for damages which did not arise from his cause of action.” Id. at 732.

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An appellate court can find legally insufficient evidence on the face of the record only when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence, or (d) the evidence conclusively establishes the opposite of the vital fact in question. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). The “face of the record” in restricted appeal cases consists of the “papers on file in the appeal.” Norman Commc’ns v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997); Unger Tex. Stone, LP v. Deere Credit, Inc., 735 S.W.3d 917, 922 (Tex. App.—Eastland 2026, no pet.) (holding that “face of the record consists of the evidence that is before the trial court when it signed its judgment”). Appellants in restricted appeals are afforded the same scope of review as those in ordinary appeals. Ex parte E.H., 602 S.W.3d 486, 495 (Tex. 2020) (citing Norman Commc’ns, 955 S.W.2d at 270). We consider the evidence in the light most favorable to the verdict and indulge every reasonable inference that supports it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). The evidence is legally sufficient if it would enable reasonable and fair-minded people to reach the verdict under review. Id. at 827. We credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. See id.

In reviewing the factual sufficiency of the evidence, we review all the evidence and reverse only if the challenged finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).

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DISCUSSION

Only the fourth restricted-appeal factor—error apparent on the face of the record—is disputed. See Lejeune, 297 S.W.3d at 255. H&H Concrete contends that the evidence is insufficient to support the damage award and that deficiencies in the judgment notice are apparent from the face of the record.

The Thurstons alleged in their petition that “H&H [Concrete] supplied the concrete for construction of the pool,” an allegation deemed admitted to prove liability. Though the causal nexus for liability for the event sued upon was deemed admitted through default, the causal nexus between that event and the plaintiffs’ alleged injuries is not admitted by default; “proof of this causal nexus is necessary to ascertain the amount of damages to which the plaintiff is entitled.” See Morgan, 675 S.W.2d at 731–32.

The evidence admitted at the damages hearing included the Declaration of William A. Thurston, Jr., and a letter reporting a forensic analysis. William Thurston declared:

As demonstrated by the expert report from MLAW Engineering, attached as Exhibit 3 to the original petition on file in this case, the concrete supplied by defendant subcontractor H & H Concrete on Demand Austin, LLC, was contaminated with an excessive amount of alkali in the aggregate, causing the alkali-silica reaction known as “ASR.”

William Thurston asserted that the pool would have to be removed and that another contractor estimated a replacement cost of $273,767.58—the amount the trial court awarded as damages. The letter from MLAW Forensics, Inc., attached to the petition, however, stated that “[t]he concrete was reportedly installed by H&H Tile and Plaster”—not H&H Concrete.

The evidence on the face of the record is not sufficient to support the damages award. The Thurstons argue that the report’s mention of H&H Tile was an “offhand reference”

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and a “minor mistaken background reference” that was “not material to that report.” However, the “offhand reference” is the only evidence at the damages hearing showing whose actions caused the Thurstons’ damages. Though William Thurston’s declaration states that the concrete was supplied by H&H Concrete, he expressly relies on MLAW’s report, which itself names H&H Tile, not H&H Concrete. No evidence showed a link between H&H Tile and H&H Concrete or otherwise showed H&H Concrete’s responsibility for that concrete or its flaws. While liability remains deemed admitted, we must reverse the default judgment because insufficient evidence shows H&H Concrete caused the Thurstons’ damages.

No deficiency in the notice of default judgment changes our disposition of this appeal. A party’s failure to comply with the certificate and notice provisions of Rule 239a does not constitute reversible error in a restricted appeal. Long v. McDermott, 813 S.W.2d 622, 624 (Tex. App.—Houston [1st Dist.] 1991, no writ) (ruling on pre-1997 writ of error); see also Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 849 (Tex. 2004) (holding that “writ of error procedure is now the restricted appeal procedure.”).

Remand for a new trial on the issue of unliquidated damages is the appropriate disposition when an appellate court sustains a no-evidence or factual-insufficiency point after an uncontested hearing on unliquidated damages following a no-answer default judgment. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 86 (Tex. 1992); Lefton v. Griffith, 136 S.W.3d 271, 280 (Tex. App.—San Antonio 2004, no pet.).

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CONCLUSION

We reverse the default judgment in part and remand for further proceedings on the amount of unliquidated damages, if any, attributable to H&H Concrete. We otherwise affirm the judgment.

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Darlene Byrne, Chief Justice

Before Chief Justice Byrne, Justices Triana and Theofanis Reversed in Part and Remanded Filed: August 13, 2026