Affirmed and Memorandum Opinion
filed August 26, 2003.
In The
Fourteenth
Court of Appeals
_______________
NO. 14-02-00644-CV
U.S. AUTO INSURANCE SERVICES,
INC., Appellant
V.
LES MARKS
CHEVROLET, Appellee
On Appeal from the County Civil Court at Law Number One
Harris County,
Texas
Trial Court Cause No. 754,847
M E M O R A N D U M O P I N I O N
This is a restricted appeal from a
default judgment in favor of appellee, Les Marks
Chevrolet (AMarks@). Appellant, U.S. Auto Insurance Services
(AU.S. Auto@) brings two grounds: (1) it did not
participate in the default judgment hearing and (2) error is apparent on the
face of the record. We
affirm.
Facts
Marks agreed to sell a car to Keith
Jones only after verifying through Aranda Insurance
(AAranda@) that he had proper insurance. Aranda
confirmed that Jones had collateral protection with U.S. Auto and provided a
written binder reflecting such coverage.
Shortly after Jones received the car, he completely destroyed it in an
accident. Marks then sued U.S.
Auto, claiming it had a duty to pay under the collateral protection policy. U.S. Auto was served with citation on
July 26, 2001. On January 23, 2002,
after U.S. Auto failed to respond, the trial court signed a no-answer default
judgment.
Restricted
Appeal
A. Standard of
Review
A party against whom a default
judgment has been rendered may bring a restricted appeal. See Tex. R. App. P. 30. In order to successfully appeal, an
appellant must establish (1) that the petition is brought within six months from
the signing of the judgment; (2) that the party filing the petition was a party
to the lawsuit; (3) that the party did not participate in the trial on the
merits; and (4) that there is error apparent on the face of the record. Id. Campbell v. Fincher, 72 S.W.3d 723,
724 (Tex. App.CWaco 2002, no pet.).
B. Application
U.S. Auto lists two reasons for its
appeal: (1) it did not participate in the trial on the merits and (2) error is
apparent on the face of the record.
Because Marks agrees that U.S. Auto did not participate in the trial, we
need only address whether error is apparent on the face of the record. Accordingly, we must consider all papers
on file in the record. Norman Communications v. Tex. Eastman Co., 955 S.W.2d
269, 270 (Tex. 1997) (per curiam).
U.S. Auto first contends that error
is apparent on the face of the record because there is no
reporter=s record of the default judgment
hearing. If damages are unliquidated, a court rendering a default judgment must hear
evidence on damages. Tex. R. Civ. P. 243;
Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d
80, 83 (Tex. 1992).
U.S. Auto asserts that a reporter=s record is necessary when a trial
court hears pleadings, evidence, and arguments of counsel. See Smith v. Smith, 544 S.W.2d
121, 123 (Tex. 1976); Alvarado v. Reif, 783
S.W.2d 303, 304B05 (Tex. App.CEastland 1989, no writ) (reversing
default judgment where there was no record of unliquidated damages and no reporter=s record made). However, the judgment in this case
reflects that the trial court considered only the pleadings and
Asufficient evidence in the form of
affidavits to establish Plaintiff=s damages.@ A trial court may award unliquidated damages in a default judgment based on
affidavits. See Tex. Commerce Bank Nat. Ass=n.
v. New, 3 S.W.3d 515, 516B17 (Tex. 1999) (in no‑answer default
judgment, affidavits satisfy Rule 243=s requirement of evidence of unliquidated damages).
Further, the pleadings and affidavits constitute a record upon which the
court may base a default judgment.
Barganier v. Saddlebrook Apartments, 104 S.W.3d 171, 173 (Tex.
App.CWaco 2003, no pet. h); Naficy v. Braker,
642 S.W.2d 282, 285 (Tex. App.CHouston [14th Dist.] 1982, writ
ref=d n.r.e.). In a
case such as this, a reporter=s record is unnecessary. See Barganier, 104 S.W.3d at 173B74. Thus, we overrule U.S.
Auto=s first argument.
Second, U.S. Auto contends there is
no evidence that the $9,975 awarded was a Areasonable and
necessary@ expense. In his affidavit,
Marks=s general manager avers the car
Awas totally
destroyed@ and the amount Adue and unpaid@ for it is $9,975. Essentially, U.S. Auto is asserting that
a car dealer must prove that the unpaid balance of the car=s sale price is reasonable and
necessary. However, the cases U.S.
Auto cites address only whether repair costs are reasonable and necessary. See Jackson v. Guiterrez, 77 S.W.3d 898, 904 (Tex. App.CHouston [14th Dist.] 2002, no pet.);
Castanon v. Monsevais, 703 S.W.2d 295, 297 (Tex.
App.CSan Antonio 1985, no writ). These cases are inapplicable because the
car in this case was destroyed, not repaired. It is well settled that an automobile
owner can testify as to its market value.
Coleman v. Journet, 859 S.W.2d 550, 551
(Tex. App.CHouston [14th Dist.] 1993, writ dism=d w.o.j.).
Accordingly, we overrule this argument.
Third, U.S. Auto contends Marks
failed to plead that it was owed a duty or that Aranda
was U.S. Auto=s agent; and thus there is
insufficient evidence of a causal link between it and Marks=s damages. These arguments are unavailing. It is well established that a default
judgment operates as an admission of the material facts alleged in
plaintiff=s petition. Stoner v.
Thompson, 578 S.W.2d 679, 684B85
(Tex. 1979). Marks states in
its petition:
(1) Marks
verified with Aranda that the buyer had insurance
before it allowed him to take possession of the car.
(2) Aranda, who was U.S. Auto=s agent, confirmed there was coverage through U.S.
Auto.
(3) Marks
relied on U.S. Auto=s representations, but was
denied its claim for damages after the buyer Atotaled@ the car.
Based on the above admissions, there
was sufficient evidence of a causal link.
We overrule U.S. Auto=s third argument.
Next, U.S. Auto contends the trial
court erroneously awarded attorney=s fees for two reasons. It asserts that Marks cannot recover
because Marks failed to plead the authority under which it is entitled to
attorney=s fees. Generally, attorney=s fees are not recoverable unless
authorized by contract or statute.
Willacy County Appraisal Dist. v. North Alamo Water Supply Corp.,
676 S.W.2d 632, 640 (Tex. App.CCorpus Christi 1984, writ
ref=d n.r.e.). A
party need not plead the specific statute under which
attorney=s
fees are available, if the party pleads facts which entitle him to relief. Mitchell v. LaFlamme, 60 S.W.3d 123, 130 (Tex. App.CHouston [14th Dist.] 2000, no
pet.); O=Connell v. Hitt, 730 S.W.2d 16, 18 (Tex.
App.CCorpus Christi 1987, no writ). The Texas Insurance Code provides for
award of attorney=s fees to prevailing parties. See Tex. Ins. Code Ann. art. 21.21, '
16 (Vernon Supp. 2003).
Further, Marks pleaded violations of articles 21.21 and 21.55 of the
Texas Insurance Code. Article
21.21, _ 3 prohibits unfair or deceptive acts
under the Insurance Code. Under
article 21.21, _ 4(1), such a deceptive act includes
misrepresenting terms of a policy.
Tex. Ins. Code
Ann. art.
21.21, '
4(1) (Vernon Supp. 2003).
Because we take the facts pleaded as true in Marks=s petition, U.S. Auto misrepresented
the coverage of the collateral protection policy. We find Marks pleaded sufficient facts
under the Texas Insurance Code which entitled it to recover
attorney=s fees. Mitchell, 60 S.W.3d at 130.
U.S. Auto also contends the evidence
was insufficient for an award of $1,000 in attorney=s fees. It alleges that the affidavit of
Marks=s counsel was incomplete because it
did not delineate the number of hours worked, his hourly rate, or a statement
that the work was necessary. We
disagree. U.S. Auto cites no
authority supporting its assertion that a default judgment creditor must provide
such information in an attorney=s fee affidavit. Further, the trial court has discretion
to fix the amount of reasonable attorney=s fees. Budd v. Gay, 846 S.W.2d 521, 524
(Tex. App.CHouston [14th Dist.] 1993, no
writ). Marks=s attorney submitted an affidavit
that reflects his 28 years of experience, the specific work done in this case,
and his familiarity with fees charged in Harris County for such work. For example, he stated that he filed the
Original Petition, obtained service, prepared all relevant affidavits, and
prepared and filed the proposed Final Judgment. He further stated that $1,000 was a
reasonable fee based on such factors as:
(a) The time
and labor required, the novelty and difficulty of the questions involved and the
skill requisite to perform the legal services
properly;
(b) The fee
customarily charged in the locality for similar legal
services;
(c) The amount
of the claim by Plaintiff against the Defendant;
(d) The time
limitation imposed by the client;
(e) The
experience of the attorney performing the services.
Such information is sufficient
evidence supporting the trial court=s judgment for
attorney=s fees. Tex. Commerce Bank Nat.
Ass=n., 3 S.W.3d at 517B18; see also Columbia Rio Grande
Reg=l Hosp. v.
Stover, 17
S.W.3d 387, 396B97 (Tex. App.CCorpus Christi 2000, no pet.). Accordingly, we overrule U.S.
Auto=s final point of error.
Having overruled each of U.S.
Auto=s issues and sub-issues, we affirm
the judgment of the trial court.
/s/
Charles W. Seymore
Justice
Judgment rendered and Memorandum
Opinion filed August 26, 2003.
Panel consists of Justices Anderson,
Seymore, and Guzman.