Opinion
No. 05-10-01479-CV
04-26-2012
KATE MCCOY, Appellant v. THE WALLER GROUP, LLC AND LOGAN WALLER, Appellee
AFFIRM; Opinion Filed April 26, 2012.
On Appeal from the 193rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. 10-09481-L
MEMORANDUM OPINION
Before Justices Bridges, FitzGerald, and Lang
Opinion By Justice FitzGerald
Appellant Kate McCoy sued appellees The Waller Group, LLC and Logan Waller, and appellees failed to answer. After a hearing on McCoy's motion for default judgment, the trial judge concluded that she had introduced no credible evidence of damages and rendered a take-nothing judgment against her. McCoy challenges the sufficiency of the evidence to support the judgment. We affirm.
I. Background
McCoy sued The Waller Group, LLC and Logan Waller for misappropriation of her likeness, conversion, fraud, tortious interference with prospective business relations, and defamation. Factually, she alleged that she worked for The Waller Group in 2007 and 2008, and that The Waller Group continued to use her photograph and likeness to promote its business after McCoy stopped working for the Group.
Appellees did not answer, and McCoy moved for default judgment. She attached an affidavit to her motion and requested damages in excess of $133,000, plus additional amounts as attorney's fees. The judge held a prove-up hearing on damages, and McCoy's testimony was the only evidence introduced at that hearing. Later that day, the judge signed a take-nothing judgment against McCoy. McCoy requested findings of fact and conclusions of law. The judge signed findings and conclusions, of which the key finding is finding number three:
Plaintiff failed to offer any credible evidence of damages. The only evidence offered was Plaintiff's testimony[,] which was both so conclusory and speculative that it constituted legally and/or factually insufficient evidence of damages. This conclusory and speculative testimony was unconvincing to the Court as a trier of fact to show any damages.McCoy timely filed a notice of appeal. Appellees never made an appearance in the trial court and have not filed a brief on appeal.
II. Analysis
A.Applicable law
In her sole issue on appeal, McCoy argues that the trial judge erred by finding that the evidence of damages was legally and factually insufficient. Because McCoy seeks remand rather than rendition of judgment, we construe her complaint to challenge the factual sufficiency of the evidence in support of the judgment. An appellant may challenge the legal and factual sufficiency of the evidence in support of unliquidated damages in an appeal from a no-answer default judgment. Argyle Mech., Inc. v. Unigus Steel, Inc., 156 S.W.3d 685, 687 (Tex. App.-Dallas 2005, no pet.).
In the case of a no-answer default, the defendant admits all facts properly pleaded in the plaintiff's petition except the amount of unliquidated damages. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 930 (Tex. 2009) (per curiam). The plaintiff still bears the burden of proving its claim for unliquidated damages with competent evidence consistent with the causes of action pleaded. In re Elite Door & Trim, Inc., No. 05-12-00170-CV, 2012 WL 610979, at *2 (Tex. App.-Dallas Feb. 27, 2012, orig. proceeding). Because McCoy bore the burden of proof on the amount of damages, the factual-sufficiency inquiry on appeal is whether the adverse finding is against the great weight and preponderance of the evidence. We must consider and weigh all of the evidence, and we set aside the finding only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that the finding is clearly wrong and unjust. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam) (stating standard of review for jury verdicts); Ashcraft v. Lookadoo, 952 S.W.2d 907, 910 (Tex. App.-Dallas 1997) (en banc) (stating that findings by the trial judge are reviewed under the same standards as jury findings), pet. denied, 977 S.W.2d 562 (Tex. 1998) (per curiam).
B.Application of the law to the facts
Conclusory evidence of damages is legally insufficient to support a default judgment when damages are unliquidated. See Lefton v. Griffith, 136 S.W.3d 271, 276-79 (Tex. App.-San Antonio 2004, no pet.); cf. City of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 2009) (holding that conclusory expert opinions are not probative evidence, regardless of whether an objection is made). We conclude that McCoy introduced only conclusory evidence of her unliquidated damages at the hearing of her motion for entry of default judgment, and thus she has not shown that the trial judge's finding was against the great weight and preponderance of the evidence.
McCoy attempted to prove up her damages through the following testimony:
Q. And so as we stand and as we speak, they do and continue to use your likeness, your imagine [sic] for purposes of marketing and promotions?Evidence is conclusory if it consists of a conclusion without the underlying facts that support it. Riner v. Neumann, 353 S.W.3d 312, 321 (Tex. App.-Dallas 2011, no pet.). McCoy's testimony about damages is conclusory because it includes no supporting facts to explain how she derived the damages figures to which she testified. Her testimony is similar to the damages testimony that the court rejected in Lefton. In that case, the plaintiff testified that the defendants caused her $290,000 in damages because she sold $300,000 worth of inventory for only $10,000. 136 S.W.3d at 276. The court of appeals held that this testimony was conclusory because the witness provided no facts supporting her assertions as to the value of the inventory, such as the type of furniture that made up the inventory, or the amount of furniture that she sold. Id. at 277. In the instant case, McCoy provided no explanation or calculations to support the damages figures she testified to.
A.Yes.
Q.[D]o you believe that this economically has harmed you?
A.Yes.
Q.And it's harmed you because persons who would otherwise be going to you are now going over to the Waller Group under the mistaken belief that you're still employed there?
A.Yes.
Q.Okay. Is that the basis of the monetary damages that you're seeking?
A.Yes.
. . .
Q.Do you believe that in regard to the tortious interference with business that $25,000 would be a fair and reasonable sum to compensate you for the misappropriation of the likeness?
A.Yes.
Q.Do you believe that in regard to the conversion of the theft of your imagine [sic], that $20,000 would be fair and adequate in regard to the compensation for the theft of the imagine [sic]?
A.Yes.
Q.Are you also asking for the Court to award exemplary damages in regard to the fraud in the amount of $30,000?
A.Yes.
Q.And do you believe that in regard to the tortious interference with prospective business, that $25,000 would be fair and adequate in regard to compensating you for that?
A.Yes.
Q.Are you also asking for $30,000 exemplary damages in that?
A.Yes.
Q.And are you also asking for $40,000 in regard to the defamation for the continued use of your name after having been requested and, in fact, demanded to be removed from there?
A.Yes.
Because McCoy adduced no probative evidence in support of her unliquidated damages, the trial judge's no-damages finding was not against the great weight and preponderance of the evidence. We reject McCoy's sole issue on appeal.
III. Disposition
For the foregoing reasons, we affirm the trial court's judgment.
KERRY P. FITZGERALD
JUSTICE
101479F.P05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
KATE MCCOY, Appellant
V.
THE WALLER GROUP, LLC AND LOGAN WALLER, Appellees
No. 05-10-01479-CV
Appeal from the 193rd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. 10- 09481-L).
Opinion delivered by Justice FitzGerald, Justices Bridges and Lang participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED. It is ORDERED that appellees The Waller Group, LLC and Logan Waller recover their costs of this appeal from appellant Kate McCoy.
Judgment entered April 26, 2012.
KERRY P. FITZGERALD
JUSTICE