TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-23-00398-CV
Jorge Arellano, Appellant
v.
Magdaleno Villegas, Appellee
FROM THE 459TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-20-001352, THE HONORABLE MAYA GUERRA GAMBLE, JUDGE PRESIDING
ME MO RAN DU M O PI N I O N
Jorge Arellano appeals from the trial court’s final default judgment and denial of
his motion for reconsideration of the denial of his motion for new trial. Arellano contends that the
evidence was legally insufficient to support the judgment’s award of unliquidated damages and
that the trial court abused its discretion in denying his motion for new trial. Because we agree with
Arellano that the evidence is legally insufficient to support some categories of damages awarded
in the judgment, we reverse the judgment in part with respect to those categories, remand for a
new trial with respect to those damages and for exemplary damages, and affirm the remainder of
the judgment.
BACKGROUND
In April 2014, Magdaleno Villegas was injured in an automobile collision with
Arellano, who was intoxicated at the time. See Old Am. Cnty. Mut. Fire Ins. v. Villegas, No. 01- 17-00750-CV, 2019 WL 3121853, at *1 (Tex. App.—Houston [1st Dist.] July 16, 2019, no pet.)
(mem. op.).1 Villegas sent a demand letter to Arellano’s insurer, Old American County Mutual
Fire Insurance Company (Old American). Old American denied Villegas’s claim because Arellano
had not been sued and because of an exclusion in Villegas’s policy. See id.
Villegas then sued Arellano and Maria D. Martinez in late 2014. Villegas alleged
that through Arellano’s negligence and gross negligence, and while driving a vehicle negligently
entrusted to him by Martinez, Arellano crossed the roadway’s double yellow lines and collided
head-on with the vehicle he was driving, causing him serious personal injuries. Villegas further
alleged that after the collision, Arellano was arrested for driving while intoxicated (DWI), having
previously been convicted twice for DWI. Villegas pleaded for actual damages as well as
exemplary damages for Arellano’s alleged gross negligence.
In March 2015, Villegas filed a motion for default judgment against Arellano. In
his motion, Villegas asserted that Arellano’s liability was established by his failure to answer and
that no evidentiary hearing was necessary to support the unliquidated damages alleged in his
petition because courts may award such damages based on affidavits, which he attached, including
his own. Thereafter the trial court signed an interlocutory order granting default judgment against
Arellano for his failure to answer.2 The judgment awarded the following actual damages: $605.44
for past lost wages; $4,233 for past medical expenses; $15,000 for past mental anguish; $35,000
1 Pursuant to its docket-equalization authority, the supreme court transferred this first appeal from this Court to the First Court of Appeals. See Old Am. Cnty. Mut. Fire Ins. v. Villegas, No. 01-17-00750-CV, 2019 WL 3121853, at *1 n.1 (Tex. App.—Houston [1st Dist.] July 16, 2019, no pet.) (mem. op.). 2 The default judgment was interlocutory because Villegas’s claims against Martinez remained pending.
2 for past physical impairment; and $50,000 for past pain and suffering. It also awarded $150,000
in exemplary damages.
About seven months after the interlocutory default judgment, the trial court granted
Villegas’s application for turnover relief, ordering Arellano to “turn over any and all claims or
causes of action he may have now or in the future, including but not limited to the Stowers action
and the failure to defend action, against Old American[.]” In April 2016, Villegas filed an amended
petition, asserting claims against Old American “pursuant to the turnover order.”
After a bench trial in 2017, the trial court rendered a final judgment, ordering Old
American to pay the damages awarded in the default judgment. Old American appealed, and the
First Court of Appeals determined that the default judgment was interlocutory because it had not
disposed of Villegas’s claims against Martinez and that it therefore could not have supported the
turnover order, which accordingly was void. See id. at *2–3. The appellate court determined that
the trial court lacked subject-matter jurisdiction over Villegas’s claims against Old American due
to his lack of standing, vacated the final judgment, and remanded the case for further proceedings.
See id. at *4.
Shortly after the cause was remanded, in late 2019, Arellano filed an original
answer and a motion to set aside the default judgment and for new trial. In his motion, he argued
that he was entitled to a new trial because the motion and his supporting affidavit satisfied the
three Craddock elements of proof: (1) the defendant’s failure to answer resulted from a mistake or
accident, not intent or conscious indifference; (2) the motion for new trial sets up a meritorious
defense to the plaintiff’s claim; and (3) the motion is filed when its granting would not result in a
delay or otherwise injure the plaintiff. See Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124,
126 (Tex. 1939). In his affidavit, Arellano attested,
3 Counsel for Plaintiff contacted me and advised that my insurance carrier . . . would handle my defense in the referenced lawsuit if I submitted the suit to my carrier. As a result, I executed a document . . . requesting that my insurance carrier provide me with a defense and turned that . . . paper over to my insurance agent. The document was prepared by counsel for Plaintiff; I merely signed the document and forwarded it to my agent.
It was my understanding based on my communications with counsel for Plaintiff that this was all that I needed to do in this lawsuit. As a result, I did not file an answer on my behalf.
My failure to respond . . . was not intentional or the result of conscious indifference, but a mistake because I relied on the advice of counsel for Plaintiff.
Villegas filed a response, objecting to the affidavit as hearsay. After an evidentiary hearing, at
which Arellano did not testify but at which three witnesses for Villegas did, the trial court sustained
Villegas’s hearsay objection and denied Arellano’s motion for new trial. Shortly thereafter, the
trial court granted Villegas’s motion to sever and motion for entry of final judgment against
Arellano. Arellano appealed from the denial of his motion for new trial.
On appeal the Fourteenth Court of Appeals held that Arellano’s affidavit was not
hearsay and that the trial court abused its discretion in excluding it, reversing the order denying
his motion for new trial and remanding for an evidentiary hearing on the motion. See Arellano v.
Villegas, No. 14-20-00332-CV, 2022 WL 2814874, at *4 (Tex. App.—Houston [14th Dist.]
July 19, 2022, pet. denied) (mem. op.).3 Having determined that a fact issue existed on the first
Craddock element—based on Arellano’s affidavit and because it was the only evidence supporting
that element—the appellate court did not reach the other two elements. See id. The court also
determined that it need not address Arellano’s second issue—challenging the sufficiency of the
3 Although not clear from the record, this second appeal was also presumably transferred from this Court to another of our sister courts pursuant to the supreme court’s docket-equalization authority.
4 evidence to support the judgment—because it had sustained his issue challenging the exclusion of
his affidavit.4 See id. at *3 n.3.
On remand for the second time and shortly after the Fourteenth Court of Appeals
issued its mandate, Arellano filed a motion for reconsideration of the trial court’s order denying
his motion to set aside and for new trial, again supported by his same affidavit. In the motion, he
argued that the evidence was legally insufficient to support the unliquidated damages awarded in
the default judgment and that “the absence of a hearing transcript renders that judgment fatally
defective.” He also argued, again, that his motion and supporting affidavit conclusively
established the Craddock elements required to set aside the default judgment and obtain a new
trial. Regarding the second Craddock element—requiring the defendant to set up a meritorious
defense to the plaintiff’s claim—Arellano contended that some categories of Villegas’s damages
were unsupported by evidence or were grossly excessive, but he did not assert that he was not
liable for the accident. After a non-evidentiary hearing, the trial court denied Arellano’s motion to
reconsider, and Arellano perfected this appeal.
DISCUSSION
In two issues, Arellano contends that (1) the evidence is legally insufficient to
support the judgment’s award of damages, all of which are unliquidated; and (2) the trial court
abused its discretion in denying his motion for new trial.
We begin by addressing Arellano’s second issue since it would afford him the most
relief (namely, a new trial) and hold that the trial court did not err in denying the motion for new
4 Although in his motion for new trial Arellano did not assert that the evidence was insufficient to support the judgment, those types of challenges may be raised for the first time on appeal in civil nonjury cases. See Tex. R. App. P. 33.1(d).
5 trial because the motion did not properly set up a Craddock meritorious defense. See 133 S.W.2d
at 126. In his motion, Arellano did not contest liability and made only conclusory allegations
related to the sufficiency of the evidence to support some of the categories of damages awarded.
He did not, however, (1) allege facts “which in law would constitute a defense to the cause of
action asserted by the plaintiff” or (2) support such factual allegations “by affidavits or other
evidence proving prima facie that the defendant has such meritorious defense.” Estate of Pollack
v. McMurrey, 858 S.W.2d 388, 392 (Tex. 1993) (quoting Ivy v. Carrell, 407 S.W.2d 212, 214
(Tex. 1966)).
Arellano alleged in his motion, for example, that Villegas’s hours of missed work
were “excessive” and “not reasonably related to the accident” and that his medical treatment was
“not solely related to the accident.” But conclusory allegations are not enough to satisfy the
Craddock factors. See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992); Ivy,
407 S.W.2d at 215. Furthermore, Arellano’s affidavit—the only evidence supporting his motion
for new trial—pertained solely to the first Craddock factor and did not address the meritorious-
defense factor at all. See Action Powersports, Inc. v. 1STEL, Inc., 500 S.W.3d 632, (Tex. App.—
Texarkana 2016, no pet.) (holding that allegations in motion for new trial that movant was entitled
to offsets and that other party failed to provide promised services were conclusory and not
sufficient in absence of any supporting and specific facts). Cf. Goskie v. Benningfield, No. 11-02-
00107-CV, 2003 WL 188556, at *2 (Tex. App.—Eastland Jan. 16, 2003, no pet.) (mem. op.)
(movant’s motion, in which she alleged that another driver caused collision, was supported by facts
in affidavit and police report and sufficient to set up meritorious defense that she did not cause
plaintiff’s injuries). Because his motion did not properly set up a meritorious defense, we overrule
Arellano’s second issue.
6 In addressing Arellano’s first issue, we first acknowledge that an evidentiary-
sufficiency challenge is distinct from a Craddock motion, which the supreme court has
“consistently characterized” as an equitable doctrine. See In re Marriage of Williams, 646 S.W.3d
542, 545 (Tex. 2022). A Craddock motion does not attempt to show an error in the judgment;
rather, it seeks to excuse the defaulting party’s failure to answer by demonstrating the Craddock
elements. Id. In contrast, a complaint of legally or factually insufficient evidence assails the
judgment, seeking to show that it is not supported by evidence presented in the trial court. Id.
Even if a trial court has not abused its discretion in denying a Craddock motion for new trial, it
may nonetheless conclude that there was legally insufficient evidence to support the unliquidated
damages awarded in the default judgment. See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80,
83–86 (Tex. 1992). We will sustain a legal-sufficiency challenge when the record demonstrates
(1) a complete absence of a vital fact; (2) that the rules of law or evidence bar the court from giving
weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital
fact is no more than a scintilla; or (4) the evidence conclusively established the opposite of the
vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005).
When a default judgment is taken against a non-answering defendant, all
allegations of material fact properly pleaded in the petition are deemed admitted, except for the
amount of unliquidated damages. See Holt Atherton, 835 S.W.2d at 83. Unliquidated damages
are those “not proved by any written instrument such that the amount of damages can be accurately
calculated by the trial court from the instrument and the factual allegations in the plaintiff’s
petition.” Kao Holdings, L.P. v. Young, 214 S.W.3d 504, 507 n.2 (Tex. App.—Houston [14th Dist.]
2006), aff’d as modified, 261 S.W.3d 60 (Tex. 2008). The trial court must hear evidence of
damages unless the damages sought are liquidated and proved by an instrument in writing. Tex.
7 R. Civ. P. 241, 243. Affidavits can satisfy Rule 243’s requirement that the court must hear evidence
to support unliquidated damages. See TexPro Constr. Grp., LLC v. Davis, No. 05-14-00050-CV,
2015 WL 4984856, at *3 (Tex. App.—Dallas Aug. 19, 2015, no pet.) (mem. op.) (citing Texas
Com. Bank, Nat’l Ass’n v. New, 3 S.W.3d 515, 517 (Tex. 1999)). The plaintiff must prove by
competent evidence both the amount of his unliquidated damages and the causal nexus between
the event sued upon and his injuries. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731–32
(Tex. 1984).
Each category of damages awarded in the default judgment here is a type of
unliquidated damages. See Holt Atherton, 835 S.W.2d at 86 (lost wages); Ramirez v. BAM! Pizza
Mgmt., Inc., No. 05-23-00311-CV, 2024 WL 725503, at *3 (Tex. App.—Dallas Feb. 22, 2024,
no pet.) (mem. op) (physical impairment and pain and suffering); PNS Stores, Inc. v. Munguia,
484 S.W.3d 503, 518 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (mental anguish); Walker v.
Ricks, 101 S.W.3d 740, 748 (Tex. App.—Corpus Christi–Edinburg 2003, no pet.) (past medical
expenses); Glazener v. Jansing, No. 03-02-00796-CV, 2003 WL 22207226, at *5 (Tex. App.—
Austin Sept. 25, 2003, no pet.) (mem. op.) (exemplary damages). Arellano challenges the legal
sufficiency of evidence supporting each category, and we thus consider the record evidence in light
of his specific challenges thereto.
Lost wages5
In challenging the legal sufficiency of the $605.44 lost-wages award, Arellano
argues that Villegas was required to, but did not, prove what his “actual earnings were before and
5 In his appellee’s brief, Villegas informs this Court that he “does not contest Arellano’s [evidentiary-sufficiency] complaints about the trial court’s award of damages for lost wages, medical expenses, mental anguish[,] and physical impairment” and “requests this Court order a
8 after the injury.” However, the case he cites does not support that proposition but, rather, supports
the trial court’s award, given the evidence. See Geoscience Eng’g & Testing, Inc. v. Allen, No. 01-
03-00402-CV, 2004 WL 2475280, at *6 (Tex. App.—Houston [1st Dist.] Nov. 4, 2004, pet. denied)
(mem. op.) (distinguishing between past lost wages and loss of future earning capacity and
concluding that if plaintiff was employed at time of injury and could prove amount he was making
at such time, wages lost due to accident were recoverable). Villegas attested in his affidavit that
at the time of the collision, he was employed as a kitchen manager at a specified restaurant, making
$14.08 per hour and that, “due to the injuries [he] sustained” in the accident, he “was forced to
miss forty-three (43) hours of work.” We conclude after reviewing analogous caselaw that this
is both legally and factually sufficient evidence of Villegas’s lost wages. See Jackson v. Gutierrez,
77 S.W.3d 898, 904 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (holding that similar evidence
was factually sufficient to support lost wages); Transport Concepts, Inc. v. Reeves, 748 S.W.2d
302, 305 (Tex. App.—Dallas 1988, no writ) (same).
Medical expenses
Arellano challenges the award of $4,233 for past medical expenses by contending
that Villegas failed to submit evidence proving that the amounts he sought to recover were actually
“paid or incurred” as required by Section 41.0105 of the Civil Practice and Remedies Code. See
Tex. Civ. Prac. & Rem. Code § 41.0105; In re K & L Auto Crushers, LLC, 627 S.W.3d 239, 249
(Tex. 2021); see also Haygood v. De Escabedo, 356 S.W.3d 390, 391 (Tex. 2011) (noting that
remittitur” of the judgment reducing the amount awarded by $54,838.44. He then states that “the only remaining question for this Court to address” concerns the sufficiency of the evidence in support of the awards for Villegas’s pain and suffering and exemplary damages. Notwithstanding this concession and remittitur offer, we will address Arellano’s challenges to each category of damages.
9 Section 41.0105 limits recovery to expenses to which a provider “has a legal right to be paid”).
Arellano contends that Villegas was required to submit evidence demonstrating that the rates
charged by his providers were not merely uncollectible list prices (“chargemaster rates”) but
reflected the negotiated rates that apply when a person is covered by medical insurance, citing
In re K & L Auto Crushers. See 627 S.W.3d at 249–50. But that case does not stand for such
proposition. See id. Instead, it acknowledges the common-law requirement that charges for
medical expenses must be reasonable and recognizes that evidence of a provider’s billing practices
may bear on that question and is discoverable by the defendant. See id. However, Arellano does
not cite any authority requiring such evidence for recovery of medical expenses, nor have we found
any. We thus consider the sufficiency of the evidence Villegas submitted to support recovery for
his medical expenses.
In his affidavit, Villegas averred that he suffered injury and damages as a “direct
and proximate result of the collision,” and that such damages included medical expenses he
incurred in the form of examinations and treatments with specified providers. He attached to his
affidavit billing records from his medical providers to prove the amounts that he paid or incurred.
The providers’ billing records were accompanied by Civil Practice and Remedies Code Section
18.001 affidavits, see Tex. Civ. Prac. & Rem. Code § 18.001, in which the affiants specified the
amounts that had already been paid for the medical services provided to Villegas as well as the
amounts that were unpaid but remained due (i.e., incurred) and to which the providers were legally
entitled. The affiants averred that the amounts paid or owed were reasonable, that the services
provided were necessary, and that the providers had the “legal right” to be paid those amounts.
Section 18.001 affidavits are sufficient, if not controverted by the defendant, to prove the necessity
10 and reasonableness of the medical expenses. See Rodriguez-Narrera v. Ridinger, 19 S.W.3d 531,
532–33 (Tex. App.—Fort Worth 2000, no pet.).
In addition to averring about the reasonableness and necessity of the medical
expenses, the affiants averred that the providers were legally entitled to be paid the specified
amounts, some of which had in fact already been paid. Cf. Haygood, 356 S.W.3d at 395–96 (noting
that provider had no legal right to be paid amounts billed for medical services because Worker’s
Compensation Act prohibited recovery above specified reimbursement rates). Villegas’s evidence
was not controverted. We conclude that the evidence is legally sufficient to support the damages
awarded for past medical expenses.
Mental anguish
Arellano challenges the legal sufficiency of the evidence supporting the trial court’s
award of $15,000 in mental-anguish damages. To recover mental-anguish damages, a plaintiff
must introduce “direct evidence of the nature, duration, and severity of their mental anguish, thus
establishing a substantial disruption in the plaintiff’s daily routine” or evidence of “a high degree
of mental pain and distress that is more than worry, anxiety, vexation, embarrassment, or anger.”
Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995). Not only must there be evidence of
the existence of compensable mental anguish, but there must also be some evidence to justify
the amount awarded. Gregory v. Chohan, 670 S.W.3d 546, 563–64 (Tex. 2023) (citing Saenz v.
Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996)).
The only evidence supporting mental-anguish damages was one statement in
Villegas’s affidavit that he suffered “severe personal injuries and damages as a direct and
proximate result of the collision,” including “past mental anguish.” Beyond this conclusory
11 statement, there is no evidence about the nature, duration, or severity of the anguish or of any
specific form of mental pain and distress showing that Villegas suffered more than common
emotions such as worry or anger, much less is there any evidence that might justify the amount
awarded. We sustain Arellano’s challenge to the legal sufficiency of the evidence supporting the
mental-anguish damages.
Physical impairment
Arellano contends that the evidence is legally insufficient to support the $35,000
awarded for Villegas’s alleged past physical impairment. To recover for physical impairment, a
plaintiff must show that the effect of the impairment is “substantial” and extends beyond any pain,
suffering, mental anguish, lost wages, or diminished earning capacity because a plaintiff may not
be compensated more than once for the same elements of loss or injury. See Golden Eagle Archery,
Inc. v. Jackson, 116 S.W.3d 757, 772 (Tex. 2003); Patlyek v. Brittain, 149 S.W.3d 781, 785–86
(Tex. App.—Austin 2004, pet. denied). Physical impairment encompasses the loss of the
injured party’s former lifestyle and can include damages for “loss of enjoyment of life.” Patlyek,
149 S.W.3d at 786. To recover these damages, the plaintiff must prove that the injuries have
impeded his ability to engage in specific non-work-related activities, such as sports, hobbies, or
recreational activities. See id. at 787.
The only evidence supporting physical impairment was the same statement in
Villegas’s affidavit recited immediately above: that he suffered “severe personal injuries and
damages as a direct and proximate result of the collision,” including “past physical impairment.”
There is no evidence about the level of Villegas’s impairment or of any specific activities of his
12 that have been impeded. Cf. id. We sustain Arellano’s challenge to the legal sufficiency of the
evidence supporting the physical-impairment damages.
Pain and suffering
Arellano challenges the judgment’s award of $50,000 for Villegas’s past pain
and suffering by contending that Villegas’s conclusory affidavit constituted no evidence of the
existence or amount of any pain and suffering he experienced. A plaintiff may prove physical pain
and suffering with his testimony or other evidence, including circumstantial evidence. See Press
Energy Servs., LLC v. Ruiz, 650 S.W.3d 23, 50 (Tex. App.—El Paso 2021, no pet.). In the absence
of direct evidence of pain, the factfinder is permitted to infer the occurrence of pain from the nature
of the injury. See id.
The direct and circumstantial evidence of Villegas’s pain and suffering consists
of his affidavit and petition. The relevant factual allegations in his petition, which are deemed
admitted, see Holt Atherton, 835 S.W.2d at 83, include the following: the parties were driving on
the 5500 block of Delta Post Drive in Austin in opposite directions when Arellano suddenly
crossed the double yellow lines and “slammed” into Villegas’s vehicle, causing Villegas to sustain
“serious personal injuries and damages.” In the affidavit, Villegas avers that “severe personal
injuries,” including “past physical pain and suffering,” resulted from the collision. In addition to
the facts deemed in the petition, Villegas describes the collision as occurring when Arellano was
intoxicated and suddenly crossed the double yellow line, striking the driver’s side of Villegas’s
vehicle. He avers that he missed forty-three hours of work due to the injuries he sustained, and
the billing records attached to his affidavit demonstrate that he had an MRI performed on and X-
rays taken of his lumbar spine, had one initial exam and two re-exams performed by a chiropractor,
13 and attended an “E/M Comprehensive” office visit with an orthopedist. The billing records
indicate that he received chiropractic manipulations and therapeutic exercises on about thirty
occasions over three months.
The process of awarding damages for amorphous, discretionary injuries such as
pain and suffering or mental anguish is inherently difficult because the alleged injury is a
subjective, unliquidated, nonpecuniary loss. Cotton Patch Café v. McCarty, No. 2-05-082-CV,
2006 WL 563307, at *4 (Tex. App.—Fort Worth Mar. 9, 2006, no pet.) (mem. op.). Likewise, once
the existence of some pain and suffering has been established, there is no objective way to measure
the adequacy of the amount awarded as compensation. In re Marriage of Noble, No. 06-16-
00032-CV, 2016 WL 6543654, at *4 (Tex. App.—Texarkana Nov. 4, 2016, pet. denied) (mem.
op.). Accordingly, the trier of fact is given broad discretion when determining such damages.
See id. at *4–5 (concluding that evidence of plaintiff’s suffering near-daily abusive assaults by
ex-husband such as being kicked and slammed into walls and floors and experiencing daily
pain was sufficient to support $200,000 award for past pain and suffering); Cotton Patch Café,
2006 WL 563307, at *4 (concluding that plaintiff’s testimony that he had never had knee problems
before accident and about his needle-like pain in back and legs after accident, plus evidence of
MRI showing torn meniscus requiring surgery and physical therapy thereafter, was legally
sufficient to support $100,000 award for past and future pain and suffering).
Although the factfinder “cannot simply pick a number and put it in the blank,” and
there must “be some evidence to justify the amount awarded,” Saenz, 925 S.W.2d at 614, appellate
courts will not set aside an award on appeal unless it is so excessive as to shock the conscience,
see In re Marriage of Noble, 2016 WL 6543654, at *4. Certain types of injuries have objective
manifestations that plainly support an award for pain and suffering—e.g., nerve damage, torn
14 muscles, and bone fractures—but even in the absence of direct testimony or other evidence of pain,
the factfinder is free to draw on common sense and experience to infer the existence of pain from
the existence of an injury likely to cause suffering. See id. at *5.
While the evidence lacks specificity about the injury that Villegas sustained, it
nonetheless supports a finding that he suffered some kind of injury to his lower back, requiring X-
rays, an MRI, and multiple visits to a chiropractor, from which a reasonable factfinder could infer
the existence of pain lasting at least three months. The trial court, as factfinder, was entitled to
draw on common sense and experience about the level of pain and suffering that Villegas
experienced—which he described as “severe”—especially considering that Villegas’s pain and
suffering was the result of a head-on automobile collision requiring him to receive three months
of frequent chiropractic care. We conclude that the evidence is legally sufficient to support the
trial court’s award and that the award is not so excessive as to shock the conscience. See id. at *4;
see also Smith v. Carter, No. 13-11-00639-CV, 2012 WL 3252499, at *5 (Tex. App.—Corpus
Christi–Edinburg Aug. 9, 2012, pet. denied) (mem. op.) (concluding that award of $18,500 for past
pain and suffering and mental anguish was not excessive to compensate plaintiff who experienced
pain in neck and back following auto accident); Dawson v. Briggs, 107 S.W.3d 739, 751 (Tex.
App.—Fort Worth 2003, no pet.) (concluding that award of $25,000 in future pain and suffering
was not excessive to compensate motorist in rear-end car accident who suffered pain in back and
neck as result); Transport Concepts, 748 S.W.2d at 305 (concluding that, despite there being no
medical documentation in record, plaintiff’s testimony as to pain he suffered from rear-end auto
collision constituted legally sufficient evidence to support $25,000 award). We overrule Arellano’s
challenge to the judgment’s award for past pain and suffering.
15 Causal connection
In addition to challenging the existence and amount of Villegas’s alleged actual
damages, Arellano contends on appeal that there is no evidence of the requisite causal connection
between Villegas’s injuries and the accident. See Morgan, 675 S.W.2d at 732. We disagree.
In his affidavit, Villegas averred that he suffered “severe personal injuries and
damages as a direct and proximate result of the collision” and that he was “forced to miss forty-
three (43) hours of work” “[d]ue to the injuries he sustained.” Courts have held such evidence
legally and factually sufficient of the required causal nexus. See, e.g., Jackson v. Gutierrez,
77 S.W.3d 898, 902 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (concluding that plaintiff’s
testimony that she went to hospital, met with doctors, received treatment, lost wages, and had pain
and anguish “as a result of the accident” constituted legally and factually sufficient evidence of
required causal nexus). We accordingly overrule Arellano’s challenge regarding the requisite
causal connection.
Exemplary damages
Arellano lastly challenges the trial court’s award of $150,000 in exemplary
damages, arguing that (1) there is no evidence that he was “grossly negligent,” a required element
of such an award; and (2) the award is not “reasonably proportioned” to actual damages.
Exemplary damages may be awarded if the claimant proves by clear and convincing evidence
that the harm with respect to which he seeks recovery results from gross negligence, see Tex. Civ.
Prac. & Rem. Code §§ 41.001(11) (defining gross negligence), .003(a) (setting out evidentiary
burden), and the exemplary damages must be “reasonably proportioned to actual damages,” Alamo
Nat’l Bank v. Kraus, 616 S.W.2d 908, 910 (Tex. 1981).
16 As we have already noted, all factual allegations in Villegas’s petition were deemed
admitted by Arellano’s default. Those allegations included the following:
At the time of the collision . . . Arellano was driving in such a manner and under such a condition as to create an extreme risk by his reckless disregard of the rights of other motorists. . . . [He], although aware of the risk to the rights, safety, and welfare of other motorists, which are concurrent with driving while intoxicated and driving recklessly, disregarded said risks and drove a motor vehicle recklessly while intoxicated.
. . . Arellano was certainly aware of the rights, welfare and safety of other motorists, which are concurrent with driving while intoxicated and driving recklessly, given that he had previously been convicted of Driving While Intoxicated on May 13, 2011 . . . and again for Driving While Intoxicated—Second on April 12, 2012.
As with Arellano’s deemed liability for ordinary negligence, the above factual allegations are
legally sufficient to prove his liability for gross negligence. See Aim-Ex Indus., Inc. v. Slover,
No. 07-09-0184-CV, 2010 WL 2136599, at *3 (Tex. App.—Amarillo May 19, 2010, pet. denied)
(mem. op.) (overruling appellant’s contention that there was no evidence of gross negligence
because “the default judgment relieved the [plaintiffs] from establishing their opponent’s gross
negligence. That is, gross negligence was effectively admitted due to the default.”); Folsom Invs.,
Inc. v. Troutz, 632 S.W.2d 872, 877 (Tex. App.—Fort Worth 1982, writ ref’d n.r.e.) (“There was
no requirement to prove defendants’ liability for gross negligence when default judgment was
taken. Defendants’ admissions by default precludes the assignment of evidentiary points of error
. . . [and] appellants are deemed grossly negligent.”). We thus overrule Arellano’s first argument
challenging the exemplary-damage award.
Arellano’s second argument—concerning the proportionality of the exemplary-
damage award—is that $150,000 is thirty times the amount of “actual damages,” which he
contends are less than $5,000 (consisting of only medical expenses and lost wages), and that such
17 award is excessive “as a matter of law.” This argument fails in two respects, however. Firstly, the
trial court’s award of actual damages was not less than $5,000 but was more than $100,000. Thus,
the award was not thirty times the actual damages but only one-and-a-half times the amount. Cf.
Nagel Mfg. & Supply Co. v. Ulloa, 812 S.W.2d 78, 79, 81–82 (Tex. App.—Austin 1991, writ
denied) (holding that exemplary-damage award of twice amount of actual damages was reasonably
proportionate to actual damages). Secondly, Arellano does not cite any authority supporting his
argument that the award is unreasonably disproportionate to actual damages.
However, because we have determined that about half of the total actual damages
awarded—i.e., $50,000 ($35,000 for physical impairment and $15,000 for mental anguish)—is
unsupported by legally sufficient evidence, we vacate the award of exemplary damages and
remand the issue to the trial court to reconsider the amount of exemplary damages, if any, to assess.
See Lisle v. DO-MO Joint Venture, No. 05-22-00236-CV, 2023 WL 6226160, at *11 (Tex. App.—
Dallas Sept. 26, 2023, pet. denied) (mem. op. on reh’g) (remanding award of exemplary damages
due to “significant reduction in actual damages,” which “changes the ratio between actual damages
and exemplary damages awarded unless the exemplary damages are reassessed”).
Texas Rule of Appellate Procedure 44.1(b) provides that when liability is contested,
the Court may not order a separate trial solely on unliquidated damages. See Tex. R. App.
P. 44.1(b). However, when a defendant appeals a no-answer default judgment, liability is not
contested for purposes of this rule. See Full of Faith Christian Ctr., Inc. v. May, No. 05-20-00859-
CV, 2022 WL 3273726, at *7 (Tex. App.—Dallas Aug. 11, 2022, pet. denied) (mem. op.); Fleming
Mfg. Co. v. Capitol Brick, Inc., 734 S.W.2d 405, 408 (Tex. App.—Austin 1987, writ ref’d n.r.e.)
(applying predecessor rule). Therefore, we reverse the awards of damages for mental anguish,
past physical impairment, and exemplary damages and remand for a new trial on those categories
18 of damages only. See Tex. R. App. P. 44.1(b); Holt Atherton, 835 S.W.2d at 86 (noting that remand
for new trial on unliquidated damages is appropriate disposition when appellate court sustains no-
evidence point after uncontested hearing on unliquidated damages following no-answer default).
CONCLUSION
We affirm the judgment, in part, as to liability and the damages awarded for lost
wages, medical expenses, and pain and suffering. However, having concluded that the evidence
is legally insufficient to support the trial court’s award of damages for mental anguish and past
physical impairment, we reverse the award of those damages and remand for a new trial on
those categories of damages. We also reverse the trial court’s award of exemplary damages and
remand for a new trial on those damages due to our reversal of the mental-anguish and physical-
impairment awards.
__________________________________________ Karin Crump, Justice
Before Justices Triana, Kelly, and Crump
Affirmed in Part; Reversed and Remanded in Part
Filed: January 24, 2025