Default judgment and un-liquidated damages: What is deemed admitted?

  
Default judgment may be granted when the Defendant was properly served, but failed to answer; but whether evidence on damages is required depends on whether the damages are liquidated. In a case decided today, Houston's First Court of Appeals holds that the Plaintiff, who obtained injunctive relief by default, did not prove monetary lost-profit damages when he moved for default judgment. When he attempted to do that in connection with his motion for new trial, it was too late. Nor did he challenge the denial of the new trial motion on appeal.
   
OPINION EXCERT WITH RELEVANT CASELAW
   
When a no-answer default is entered against a party on an unliquidated claim, the non-answering party is deemed to have admitted all facts properly pleaded, except for the amount of damages. Texas 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); Whitaker v. Rose, 218 S.W.3d 216, 220 (Tex App.—Houston [14th Dist.] 2007, no pet.).
   
“After a default judgment occurs, unliquidated damages, i.e., damages not expressly provided for within a written instrument, must be proven to the trial court.” Lucas v. Clark, 347 S.W.3d 800, 803 (Tex. App.—Austin 2011, no pet.) (citing Tex. R. Civ. P. 243). Unliquidated damages can be proved up through an evidentiary hearing or with affidavits. Texas Commerce Bank, Nat’l Ass’n, 3 S.W.3d at 517.
   
“Recovery for unliquidated damages in the form of lost profits . . . requires that the injured party do more than show that it suffered some lost profits.” Lucas, 347 S.W.3d at 803. The amount of the loss must be shown by competent evidence with reasonable certainty. Heine, 835 S.W.2d at 84. To meet this reasonably-certain-evidence standard, opinions or estimates of lost profits must, at a minimum, be based on objective facts, figures, or data from which the amount of lost profits can be ascertained. Id.
  
ANALYSIS
   
Larry complains that he requested in his petition an award of actual damages “in an amount within the jurisdictional limits of this Court,” but was not awarded lost profit damages by the trial court. Absent special exceptions, a plaintiff’s request for an award of damages “within the jurisdictional limits of the court” is sufficient to provide notice pleading of a claim for unliquidated damages. Tex. R. Civ. P. 47; see also Cont’l Sav. Ass’n v. Gutheinz, 718 S.W.2d 377, 383 (Tex. App.—Amarillo 1986, writ ref’d n.r.e.) (“[T]he pleadings met the requirement to state that the damages sought exceed the minimum jurisdictional limits of the court.”).

Whether Larry pleaded actual damages, however, is not the relevant inquiry because pleadings cannot prove up unliquidated damages in a default judgment. See Tex. R. Civ. P. 243. In his motion for default judgment, Larry did not request an award of damages. He also failed to provide any evidence of lost profit damages at the default judgment hearing or with supporting affidavits.

The trial court did not err by not awarding unliquidated lost profits damages to Larry that were not requested nor proven up with evidence.

Larry purported to prove up his lost profits for the first time with an affidavit attached to his motion for new trial. We need not address the deficiencies in that evidence or whether Larry otherwise satisfied the requirements for obtaining a new trial based on new evidence[2] because Larry does not argue here that the trial court abused its discretion by denying his motion for new trial.

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