Jackson v. Biotectronics, Inc.

• Decision Date: 05 December 1996
• Docket Number: No. 14-94-01220-CV,14-94-01220-CV
• Citation: 937 S.W.2d 38
• Parties: Clemis L. JACKSON, M.D., Appellant, v. BIOTECTRONICS, INC. d/b/a Bio-Electric Therapy Associates, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 38

937 S.W.2d 38

Clemis L. JACKSON, M.D., Appellant, v. BIOTECTRONICS, INC. d/b/a Bio-Electric Therapy Associates, Appellee.

No. 14-94-01220-CV.

Court of Appeals of Texas Houston (14th Dist.).

Dec. 5, 1996.

Woodrow W. Miller, Houston, for appellant.

Thomas L. Hunt, Ryan Chadwick, Kathleen Walsh Beirne, Houston, for appellee.

Before LEE, HUDSON and EDELMAN, JJ.

OPINION ON MOTION FOR REHEARING

LEE, Justice.

Appellant's motion for rehearing is denied, the opinion issued in this case on August 29, 1996 is withdrawn, and the following opinion is issued in its place.

This is an appeal by writ of error of a no answer default judgment entered against Dr. Clemis Jackson. In ten points of error, Jackson appeals the judgment. We affirm.

Appellant, Jackson, is a medical doctor who practices in Fort Bend County, Texas. Appellee, Bio-Electric Therapy Associates (BETA), is a medical service company which provided Jackson with therapists to assist in the treatment of Jackson's patients. In August 1993, BETA entered into an agreement with Jackson to provide therapists. Under the agreement, Jackson was to pay BETA sixty percent (60%) of the amount collected for the services provided by the therapists. In addition, the contract provided that Jackson would not attempt to employ the therapists for the same or similar services at the doctor's facilities.

Pursuant to the agreement, BETA assigned Ryan Fugate to perform services at Jackson's office. Fugate performed therapy for Jackson's office from August through December 1993. BETA alleged that on December 6, 1993, Jackson approached Fugate about terminating his employment with BETA and initiating employment with Jackson. Approximately two weeks later, Fugate quit working for BETA and began working for Jackson directly.

BETA brought this action alleging two causes of action: 1) breach of contract and 2) intentional and tortious interference with a contractual relationship. Jackson did not answer or appear. After a hearing to prove unliquidated damages, the trial court entered a default judgment for approximately $50,000 in damages and attorney's fees against Jackson on August 11, 1994. On November 1, 1994, Jackson filed this petition for writ of error.

A default judgment on an unliquidated claim admits all allegations of facts set out in the petition, except the amount of damages. Stoner v. Thompson, 578 S.W.2d 679, 684 (Tex.1979); Comstock Silversmiths, Inc. v. Carey, 894 S.W.2d 56, 57 (Tex.App.--San Antonio 1995, no writ). "If the facts set out in the petition allege a cause of action, a default judgment conclusively establishes the defendant's liability." Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex.1984). The supreme court has referred to the forgoing as "two long-standing rules of Texas jurisprudence." Id. (citing Stoner, 578 S.W.2d at 684; Tarrant County v. Lively, 25 Tex. 399 (Supp.1860); Clark v. Compton, 15 Tex. 32 (1855); Long v. Wortham, 4 Tex. 381 (1849); Wall v. Wall, 630 S.W.2d 493, 496 (Tex.App.--Fort Worth 1982, writ ref'd n.r.e.)).

Jackson's sixth, eighth and ninth points of error run afoul of these two "long standing" rules. These points of error relate to whether or not Jackson was liable on BETA's breach of contract claim. Jackson contends that the evidence presented to the trial court was insufficient to support:

1. the judgment because BETA failed to demonstrate that it had satisfied all the conditions precedent in the contract (point 6);

2. the trial court's finding "that the contract was terminated by either party" (point 8); and

3. the trial court's finding that he signed the agreement (point 9).

Each of these points of error address whether or not Jackson was liable for breach of contract. We have reviewed BETA's petition and find that it alleges a breach of contract cause of action. Therefore, because Jackson failed to answer and a default judgment was entered, BETA's petition "conclusively establishes" Jackson's liability for breach of contract. See Morgan, 675 S.W.2d at 731; Stoner, 578 S.W.2d at 684; Comstock, 894 S.W.2d at 57. Jackson's sixth, eighth and ninth points of error are overruled.

Appellant's first, third, fourth and seventh points of error similarly disregard basic writ of error, default judgment practice. A trial court is to grant a default judgment if the plaintiff files a petition that properly states a cause of action, invokes the trial court's jurisdiction, gives fair notice to the defendant, and does not affirmatively disclose any invalidity of the claim on its face. Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d 491, 494 (Tex.1988). In order to obtain relief from a default judgment with an appeal by writ of error to the court of appeals, the petition for writ of error must show that the petition was perfected within six months of the judgment, by a party to the suit, who did not participate in the trial, and error that is apparent on the face of the record. TEX.R.APP.P. 45; Havens v. Ayers, 886 S.W.2d 506, 508 (Tex.App.--Houston [1st Dist.] 1994, no writ). A writ of error is intended to protect a party that did not participate in the trial of the matter and did not discover that a judgment had been rendered against it until after the judgment was signed. Noriega v. Cueves, 879 S.W.2d 192, 193 (Tex.App.--Houston [14th Dist.] 1994, writ denied); but see Texaco, Inc. v. Central Power & Light Co., 925 S.W.2d 586, 590 (1996) (noting that writ of error is not an equitable remedy "but another mode of appeal"). In his first, third, fourth and seventh points of error, Jackson attempts to shift the burden onto BETA or the trial court to demonstrate that venue, jurisdiction or the trial court's findings supporting the award of attorney's fees were proper. Instead, the burden is properly on Jackson to demonstrate that an error was made in the trial court and that the error was apparent from the face of the record. See Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.1994) (per curiam).

In his fifth point of error, Jackson argues there was no evidence, or factually insufficient evidence, to support the award of damages in this case. Specifically, Jackson contends the trial court erred in finding that he collected any charges as a condition precedent to BETA's recovery. As noted, the general rule is that a default judgment on an unliquidated claim admits all allegations of facts set out in the petition, except the amount of damages. Stoner, 578 S.W.2d at 684; Comstock, 894 S.W.2d at 57. To establish unliquidated damages, a plaintiff must produce evidence sufficient to comport with TEX.R.CIV.P. 243. Willacy County Appraisal Review Board v. South Padre Land Co., 767 S.W.2d 201, 204 (Tex.App.--Corpus Christi 1989, no writ), citing Harris County Water Control & Improvement Dist. v. Hornberger, 601 S.W.2d 66, 67-68 (Tex.Civ.App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.).

Jackson points out that BETA's petition alleged that "Pursuant to the terms of the contract Jackson became bound and obligated to pay BETA sixty (60%) percent of all collected charges associated with the delegated services provided under the contract." Jackson alleges the only testimony BETA produced at the default judgment hearing regarded the amounts Jackson billed rather than collected. Therefore, Jackson contends, there was no evidence or factually insufficient evidence to uphold the award of damages on the contract. We disagree.

At the default judgment proceeding, Ms. Marie Valenzuela, Executive Director of BETA, testified concerning unliquidated damages. She explained the contract called for BETA to receive 60% of the "collection from the insurance company." She also testified the total billing for Mr. Fugate's services was $80,211.00, and the insurance company would reimburse Jackson at a rate of 84%. ¹ Sixty percent (60%) of this amount, which BETA was due under the contract, amounted to $40,343.72. Using the same 84% reimbursement (or collection) rate, Ms Valenzuela also testified that BETA was entitled to an additional $7,628.35 because of Jackson's failure to terminate the contract in a timely fashion, i.e., future damages. We find this evidence satisfies TEX.R.CIV.P. 243 and is therefore sufficient to support the award of damages on the contract. ² Jackson's fifth point of error is overruled.

In his first point of error, Jackson asserts that the default judgment should not have been entered because Harris County was not the proper venue for the matter. Jackson maintains that because the petition alleged that he was conducting business in Fort Bend County, venue was not properly in Harris County.

If a defendant objects to the plaintiff's choice of venue, the question of proper venue is raised and the plaintiff must prove that the matter is maintainable in the county of the suit. Wilson v. Texas Parks and Wildlife Dep't, 886 S.W.2d 259, 260 (Tex.1994). However, if the defendant does not challenge the plaintiff's choice of venue through a motion to transfer venue, venue is fixed in the county chosen by the plaintiff. Id. Thus, while venue may be improper, the defendant can submit to the location by failing to raise the matter with the trial court.

BETA contends that venue was appropriate under either section 15.001 or 15.040. TEX.CIV.PRAC. & REM.CODE ANN. 15.001; 15.040 (Vernon 1986), amended by Act of May 18, 1995, 74th Leg., R.S., ch. 138, 1, 1995 Tex.Gen.Laws 978, 978 (current version at TEX.CIV.PRAC. & REM.CODE ANN. 15.001; 15.002 (Vernon Supp.1996)); see also CASSIDY & STOREY, Venue Whenue Need It Fast, HBA APPELLATE PRACTICE SECTION (June 26, 1996). Section 15.001 provided that, as a general rule, suits were to be brought in the county were the cause of action accrued or in the county of the defendant's residence. TEX.CIV.PRAC. & REM.CODE ANN. 15.001 (Vernon 1986). Section 15.040 provided that if the residence of the defendant is unknown, the suit may be brought in the county in which the plaintiff resides. Id...