Opinion
No. 04-05-00229-CV
Delivered and Filed: February 22, 2006.
Appeal From the County Court at Law No. 7, Bexar County, Texas, Trial Court No. 297342, Honorable David Rodriguez, Judge Presiding.
Affirmed in Part and Reversed and Remanded in Part.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Carlos Lares filed this restricted appeal from a no-answer default judgment in a personal injury suit arising out of a car accident. Because we agree with Lares that there is no evidence to support the damages awarded in the judgment, we reverse the judgment in part and remand the cause for a new trial on damages.
Robert and George Madrigal sued Lares, alleging that Lares's negligence caused an accident that damaged George Madrigal's car and injured Robert Madrigal, who was driving the car. When Lares failed to timely answer, the Madrigals obtained a default judgment awarding them $5,000 for property damage, $3,000 for past medical expenses, $5,000 for future medical expenses, and $10,000 for past and future pain and suffering. Lares did not file any postjudgment motions, but did timely file a restricted appeal in which he contends there is legally and factually insufficient evidence to support the damage awards.
To prevail on his restricted appeal, Lares "must establish that: (1) [he] filed notice of the restricted appeal within six months after the judgment was signed; (2) [he] was a party to the underlying lawsuit; (3) [he] 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." Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); see Tex.R.App.P. 26.1(c), 30. When, as here, the first three elements are met, review by a restricted appeal "affords an appellant the same scope of review as an ordinary appeal, that is, a review of the entire case." Norman Commc'ns v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997). "The only restriction . . . is that the error must appear on the face of the record." Id. "The face of the record, for purposes of [a restricted appeal], consists of all the papers on file in the appeal, including the [reporter's record]." Id. "It necessarily follows that review of the entire case includes review of legal and factual insufficiency claims." Id.
"Once a default judgment is taken on an unliquidated claim, all allegations of fact set forth in the petition are deemed admitted, except the amount of damages." Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992). "A court rendering a default judgment must hear evidence of unliquidated damages." Id.; Tex. R. Civ. P. 243. The plaintiff must establish his unliquidated damages and "the causal nexus between the event sued upon and the plaintiff's injuries . . . by competent evidence." Morgan v. Compugraphic Corp., 675 S.W.2d 729, 732 (Tex. 1984). At the default judgment hearing, George Madrigal testified that he is the owner of the car damaged in the accident and that he is "asking for a judgment in the amount of $5,000 for the property damage." Robert Madrigal testified he was the driver of the car in the accident and that he is "asking the court to award [him] a judgment [of] $10,000 for past and future pain and suffering, . . . $3,000 for past medical expenses, . . . [and] $5,000 for future medical expenses." In response to a question by the trial court, Robert also testified that the $3,000 in medical expenses is for x-rays taken in a hospital emergency room. The record contains no other evidence supporting the damage awards.
Lares argues the evidence is legally insufficient to support the damage awards. We agree. The Madrigals offered no evidence that the $3,000 in medical expenses were incurred as a result of the accident or that they were reasonable and necessary. See Texarkana Mem'l Hosp., Inc. v. Murdock, 946 S.W.2d 836, 840 (Tex. 1997); Jackson v. Gutierrez, 77 S.W.3d 898, 902-03 (Tex.App.-Houston [14th Dist.] 2002, no pet.). Likewise, the Madrigals presented no evidence establishing that in all reasonable probability, Robert will require future medical care as a result of the accident and that the reasonable cost of that care is $5,000.00. See Fisher v. Coastal Transp. Co., 149 Tex. 224, 230 S.W.2d 522, 523 (1950). With respect to the award for past and future pain and suffering, the Madrigals did not present any evidence of the nature of Robert's injuries, if any, or that the injuries have ever caused him any pain or other symptoms. See SunBridge Healthcare Corp. v. Penny, 160 S.W.3d 230, 248 (Tex.App.-Texarkana 2005, no pet.). And there is no evidence of the reasonable and necessary cost to repair the damage to the car. See Jackson, 77 S.W.3d at 904; Castanon v. Monsevais, 703 S.W.2d 295, 298 (Tex.App.-San Antonio 1985, no writ). Accordingly, we affirm the judgment of liability; however, we reverse the award of damages and remand the cause for a new trial on the issue of damages. See Holt, 835 S.W.2d at 86.