Paradigm's petition does not contest the trial court's decision to strike its answer as a discovery sanction or the default judgment rendered against it on liability. Paradigm's appeal focuses instead on its exclusion from the trial on damages. As a general rule, a defaulted defendant has the right to participate in such a trial when, as here, the plaintiff's damages are unliquidated. Rainwater v. Haddox, 544 S.W.2d 729, 733 (Tex.Civ.App.-Amarillo 1976, no writ) (citing, inter alia, Maywald Trailer Co. v. Perry, 238 S.W.2d 826, 827–28 (Tex.Civ.App.-Galveston 1951, writ ref'd n.r.e.)). Paradigm contends that the trial court therefore abused its discretion by extending the discovery sanction to bar its participation at this trial. Retamco responds that Paradigm waived this complaint by not raising the issue in the court of appeals. It points out that Paradigm's most recent brief in the court of appeals complained about several things but not about the discovery sanction itself.
As a general rule, a defaulted defendant has the right to participate in such a trial when, as here, the plaintiff's damages are unliquidated. Rainwater v. Haddox, 544 S.W.2d 729, 733 (Tex. Civ. App.—Amarillo 1976, no writ) (citing, inter alia, Maywald Trailer Co. v. Perry, 238 S.W.2d 826, 827–28 (Tex. Civ. App.—Galveston 1951, writ ref'd n.r.e.)). Paradigm contends that the trial court therefore abused its discretion by extending the discovery sanction to bar its participation at this trial.
If the defendant appears at a post-default hearing on damages, it has the right to cross-examine witnesses and to present evidence on unliquidated damages. Kirkpatrick v. Mem'l Hosp. of Garland, 862 S.W.2d 762, 773 (Tex.App.-Dallas 1993, writ denied); Ne. Wholesale Lumber, Inc. v. Leader Lumber, Inc., 785 S.W.2d 402, 407 (Tex.App.-Dallas 1989, no writ); Maywald Trailer Co. v. Perry, 238 S.W.2d 826, 827 (Tex.Civ.App.-Waco 1951, writ ref'd n.r.e.). The defendant may cross-examine the plaintiff's witnesses and present its own witnesses to show that the event made the basis of the plaintiff's suit did not cause the plaintiff's injuries.
In the trial on the question of damages, the defaulting defendant has the right to be heard and participate. Maywald Trailer Co. v. Perry, 238 S.W.2d 826, 827 (Tex.Civ.App. — Waco 1951, writ ref'd n.r.e.). The right to participate includes the opportunity to present evidence to defeat the plaintiff's action by showing that the event alleged as the basis for the plaintiff's cause of action caused no damages to that plaintiff.
I draw the following conclusions from the following cases: A defendant in a no-answer default case is entitled to a jury trial on unliquidated damages upon proper demand. See Maywald Trailer Co. v. Perry, 238 S.W.2d 826, 828 (Tex.App. — Galveston 1951, writ dism'd) (writ of inquiry after no-answer default). A defendant in a no-answer default case is entitled to attend the hearing on unliquidated damages.
Sunrizon Homes, Inc. v. Fuller, 747 S.W.2d 530, 534 (Tex.App. — San Antonio 1988, writ den'd); Metcalf v. Taylor, 708 S.W.2d 57, 59 (Tex.App.-Fort Worth 1986, no writ). Furthermore, Defendant had the right to cross examine witnesses and to offer rebuttal testimony concerning damages and the causal connection between the damages and the alleged culpable conduct. Fiduciary Mort. Co. v. City Nat. Bank of Irving, 762 S.W.2d 196, 199 (Tex.App.-Dallas 1988, writ den'd); see also, Maywald Trailer Co. v. Perry, 238 S.W.2d 826, 827 (Tex.Civ.App.-Galveston 1951, writ ref'd n.r.e.). Once the defendant has made an appearance in the case, the defendant has the right to be notified of the trial on unliquidated damages, even after a default by sanctions. Bass v. Duffey, 620 S.W.2d 847, 850 (Tex.Civ.App.-Houston [14th Dist.] 1981, no writ).
Not only may the defendant contest the plaintiff's proof, he may also present proof of his own on the issue of damages. Fiduciary Mortgage Co. v. City National Bank of Irving, 762 S.W.2d 196, 199 (Tex.App. — Dallas 1988, writ denied); Maywald Trailer Co. v. Perry, 238 S.W.2d 826, 827-28 (Tex.Civ.App. — Galveston 1951, writ ref'd n.r.e.). In Maywald, the court of appeals declared:
The State Bar further argues that even assuming arguendo that restitution is akin to damages, because the amount of restitution was liquidated, rule 243, which only applies to unliquidated damages, is inapplicable. Still further, the State Bar argues that a writ of inquiry would have been unnecessary and inappropriate here because the amount of restitution was ascertained in the default proceeding. It relies on Maywald Trailer Co. v. Perry, 238 S.W.2d 826 (Tex.Civ.App. — Galveston 1951, writ ref'd n.r.e.) and claims that Hanners' reliance on Maywald is misplaced. The Supreme Court of Texas has recently promulgated the Rules of Disciplinary Procedure, which apply to all attorney disciplinary actions commenced on or after May 1, 1992 and repeal article X, sections 1-8 and 10-38 of the State Bar Rules except to the extent that they apply to pending disciplinary matters.
CNB was entitled to offer proof and call witnesses in mitigation of damages. See Maywald Trailer Co. v. Perry, 238 S.W.2d 826, 827 (Tex.Civ.App. — Galveston 1951, writ ref'd n.r.e.). Fiduciary's first point of error is overruled. The trial court's findings on liability
A default judgment, however, does not establish allegations pertaining to unliquidated damages. Freeman v. Leasing Associates, Inc. at p. 408; Maywald Trailer Co. v. Perry, 238 S.W.2d 826 (Tex.Civ.App. — Galveston 1951, writ ref'd n.r.e.). Unliquidated claims include damages for personal injuries, lost profits, consequential damages, exemplary damages, and reasonable attorney's fees. Pohl and Hittner, Judgments by Default in Texas at p. 437. The plaintiff must present evidence of unliquidated damages, and this evidence must be both competent and consistent with the cause of action plead.