Joey Judice, Jr., Joseph Judice, Joseph Judice, Jr., J.N. Judice and J.N. Judice, Jr. v. Kens-TV

• Court: Court of Appeals of Texas
• Decided: November 17, 2005
• Docket: 14-04-00894-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed November 17, 2005

Affirmed and Memorandum Opinion filed November 17, 2005.

In The

Fourteenth Court of Appeals

_______________

NO. 14-04-00894-CV

JOEY JUDICE, JR., JOSEPH JUDICE, JOSEPH JUDICE, JR.,

J.N. JUDICE and J.N. JUDICE, JR., Appellants

V.

KENS‑TV, Appellee

On Appeal from County Civil Court at Law No. 4

Harris County, Texas

Trial Court Cause No. 806,257

M E M O R A N D U M   O P I N I O N

In this restricted appeal, Joey Judice, Jr., Joseph Judice, Joseph Judice, Jr., J.N. Judice and J.N. Judice, Jr. (AJudice@)^[1] challenge a default judgment entered in favor of KENS-TV for non-payment of a verified account^[2] on the ground that the record lacks evidence of a contract between the parties.  We affirm.

To prevail on a restricted appeal, Judice must establish, among other things, that error is apparent on the face of the record.  Alexander v. Lynda=s Boutique, 134 S.W.3d 845, 848 (Tex. 2004).  Judice asserts that such error exists in this case because the record lacks any evidence of: (1) a contract between the parties; (2) any privity between the parties; or (3) any implied contract between the parties.

However, once a default judgment is taken on an unliquidated claim, all allegations of fact in the petition are deemed admitted except the amount of damages.^[3]  Thus, there is no error apparent on the face of the record.  Accordingly, Judice=s first, second, and third issues are overruled and the judgment of the trial court is affirmed.

/s/        Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed November 17, 2005.

Panel consists of Justices Fowler, Edelman and Guzman.

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^[1]           An order entered by the trial court dismissing the other defendants reflects that Joey Judice, Jr. is the same person as Joseph Judice, Joseph Judice, Jr., J.N. Judice, and J.N. Judice, Jr.

^[2]           See Tex. R. Civ. P. 185.

^[3]           Tex. Commerce Bank, Nat=l Ass=n v. New, 3 S.W.3d 515, 516 (Tex. 1999);  Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992).  In addition, a party resisting such a sworn claim who fails to file a written denial, under oath, within the time frame allotted for such a response may not deny the claim.  Tex. R. Civ. P. 185.