law-liquidated-damages | unliquidated damages |
A claim is liquidated if the amount of damages may be accurately calculated from the factual, as opposed to the
conclusory, allegations in the petition and the written instruments. See Argyle Mech., Inc. v. Unigus Steel, Inc.,
156 S.W.3d 685, 687 (Tex. App.-Dallas 2005, no pet.).
A claim is liquidated under Rule 185 if the amount of damages can be accurately calculated by the trial court
from the factual allegations, as opposed to the conclusory allegations, in the plaintiff's petition and from the
instrument in writing evidencing the account. Pine Trail Shores Owners' Ass'n, Inc. v. Aiken, 160 S.W.3d 139,
144 (Texas App.-Tyler 2003, no pet.). If the trial court was correct in its assessment, then it did not need to
hear evidence as to damages. See Tex. R. Civ. P. 241 (the trial court can assess the damages for a liquidated
claim that is proved by an instrument in writing); Rizk v. Financial Guardian Ins. Agency, 584 S.W.2d 860, 862
(Tex. 1979) (in the absence of a sworn denial meeting the requirements of Rule 185, the account is received as
prima facie evidence against the defendant).
The damages were liquidated in the sense that they could be calculated from the factual allegations in
appellee's petition and an instrument in writing. See Pentes Design, Inc. v. Perez, 840 S.W.2d 75, 79 (Tex.
App.-Corpus Christi 1992, writ denied) (defining liquidated damages in default judgment context).
Whether a contract term is a liquidated damages clause is a question of law for the court. Valence Operating
Co. v. Dorsett, 164 S.W.3d 656, 664 (Tex. 2005). Liquidated damages clauses fix in advance the compensation
to a party accruing from the failure to perform a specified contractual obligation. Id.
LIQUIDATED AND UNLIQUIDATED DAMAGES CASE LAW
Sebritsky v. Sembritzky (Tex.App.- Houston [1st Dist.] Jan. 8, 2009)(Taft)
breach of a contractual alimony agreement, misnomer, default judgment, liquidated damages)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR
FURTHER PROCEEDINGS: Opinion by Justice Taft
Before Justices Taft, Keyes and Alcala
01-07-00251-CV Verley Lee Sembritsky, Jr. v. Michel Castrinos Sembritzky
Appeal from 312th District Court of Harris County
Trial Court Judge: Hon. James Squier
No answer default judgment based on service of citation by certified mail sustained - award of
unliquidated damages reversed and remanded
Fellows v. Adams (Tex.App.- Houston [1st Dist.] Oct. 18, 2007)(Higley)(default judgment, service by certified
mail, insufficient proof of unliquidated damages)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR
FURTHER PROCEEDINGS: Opinion by Justice Higley
Before Justices Taft, Hanks and Higley
01-06-00924-CV Kerry G. Fellows v. Rasheed Adams
Appeal from 127th District Court of Harris County (Hon. Sharolyn Wood)
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