## In the Court of Appeals S econd Appellate District of T exas

at Fort Worth

___________________________ No. 02

- 20

- 00176

- CV

___________________________

On Appeal from the 16th District Court Denton County, Texas Trial Court No. 19

- 10071

- 1 6

Before Sudder th, C.J.; Womack and Wall ach, JJ. Memorandum Opinion b y Chief Justice Sudderth 

### M ETRO 

### S OLUTIONS 

### T EX AS 

### , LLC AND 

### B RIAN 

### R ADICAN 

### , Appellants

V



### . C RAIG 

### S MITH 

### , Appellee2 MEMOR ANDUM OPINION
I. Introduction
A ppellee Crai g Smith too k separate no

- answer default judgment s against Appellants M etro Solutions Texas, LLC a nd Brian Radic an . With in s ix months of the default jud gments, Met ro So l u tions and Ra dican filed a notice of restr icted appeal

. See Tex. R. App. P. 30.
Radican conte nds that the default judgment taken against him is void because
the trial court rendered it after having lost its p le nary jurisdiction . We agree

. The default judgm ent taken against Metro Solutions was the final judgment, and the trial court signed the de fault judgment against R adican more than thirty days later. We
vacate th e de fault judgmen t aga in st Radi can . Next, Me tro So lutio ns contends that Smith presented the wrong mea sure of
dama ges for a claim under the Texas Deceptive Trade Practices Act (D TPA) and that
the evidence is legally insuffic i ent to support the d amages awar ded against it

. Bec ause Smith pleaded and pr oved the damag es awarded , we hold that legally su fficient evidence sup p orts the tr ial court ’ s damages award

. Another of Metro Solutions ’ complain t s is that the tria l court improperly quadrupled the damage a ward under th e DT P A. We agree an d modify the jud gment to cap t he DTPA award a t treble damages. Turning to the award of attorney ’ s fees, Met ro Solutions a sserts t hat because
Smith pleaded causes of action for which atto rney ’ s fees could and could not be3

awarde d and becaus e Smith did not se gregate his att orney ’ s fees i ncurred between the
two, the trial court erred b y awarding attorney ’ s fees fo r both types. We agree, reverse
the award of a ttorney ’ s fees, an d re mand the cause to the trial court for a new trial on
attorney ’ s fees. Finally, be caus e th e defau lt judgment ag ainst Metro So l utions was the final judgment , be cause that judgment effec tively ord ered that S mith take nothing fro m
R adican , and because S mith di d not appeal , we affir m th e take

- nothing

- from

- Radican portion o f the final judgme nt.
II. Backgr ound
A. Factu al Back ground
S mith contracted with Metro Solutions to build an additional room onto a house

. Dissati sfied with Metro Soluti ons ’ w or k , Smith sued Metro So lutions a nd
Radican , Metro Solutions ’ pre s ident

. B. Smit h Takes a No

- Answer Default Ju dgme nt Against Metro Solution s Smith successful ly served Metro Solutions on Octo ber 24 , 20 19, and w hen
Metro S olutions did not fil e an an swer, Smi th moved fo r a default judgme nt a gains t it on December 4, 2019. T wo days later, on D ece mber 6, 2019, t he t ria l cour t si gned an
order entit

led, “ O rder on F inal D efa ult J u dgme nt ag ainst D efendant , ” in whi ch th e only named parties were Smi th and Metro Solut io ns. Th e order , h owever, con cluded,

“ This judgment, having disposed of al l p arties and all clai ms, is final a nd appealable. ”4

C. Smith Ta kes a No

- Answe r Defau lt Judgment Against Ra dican
Smi th did not su ccessfully s erve Radican until N ovember 25, 2019 , about a

m onth after having serv ed M etro So lutions

. Like Met r o Solutions, Radican did not
file an answe r, so Smi th moved for a defa ult jud gm e nt against him on J anuary 9, 2 020 , and on the s ame day , the trial c ourt granted an “Order on F inal Default Judgment agai nst Defendant

. ” This o rder named only Smith and Radican as parties, but it

c oncluded, as did the e a rlier d e f aul t judgment aga inst Met ro Soluti on s , with the language, “This judgment, having di sposed of all parties and a ll claims, is final and
ap pealable.”
D. Met ro Solu tions and Radican File a Restrict ed Appeal Later, on June 4, 2020, Metro Solut ions a nd Radi ca n filed a “ Defenda nts ’
N oti c e of Rest rict ed Appeal ” attac king both the December 6, 2 01 9 and January 9,
2020 defau lt judgments. See Tex. R. App. P. 30. As required , t he y filed their notice of appeal within six mo nths o f both jud gme nt s ’ dates

. See Tex . R

. A pp. P. 26.1 (c) , 30.
III. D i scussion
A. Re stricted Appe als To prevail in a restricted appeal, the fili ng party must show :

• it f iled not i ce of the r estricted appeal wit hin six months after the judgment w as signed;

• it was a party to the u n der lying lawsuit ;5

• it did not parti cipate in t he hearing th at resulted in the judgment co mp lained of and did not timel y file any post

- jud gment mot ions or req uests for findings of fact and conclusions of law; and

• error is apparent on the face of th e re cord. Ex part e E.H. , 602 S.W.3d 486 , 495 (Te x. 202 0). The face of the record in a restricte d

a ppeal consists of the paper s on file with the tria l court whe n it renders judgment

. Clamon v. DeLong

, 477 S.W.3d 823, 825 (Tex. App.

— F o rt Worth 2015, no pet .)

. T he scope of r eview in a restricte d appeal is the same as in an ordinary appeal , but the

sta nd ard of review differs in th at, in a restricted appe al , the reviewing court may not draw inferences or presumptions from the record but must lo ok solely to th e fa c e of
the rec or d itself. Ex parte E.M.P. , 5 72 S.W .3d 361, 363

– 64 (Tex. App.

— Amarillo 2019, n o pet.)

. Thus , in a restrict ed appeal , the error mus t be apparent, not inferred.
Id

. at 364.
Met ro Solutions and Radican meet the first three elements. Smit h do e s no t

assert o therwise. The di spute is t hus over whether they can meet the fo ur th
element

— whether they can show error on the face of the record

. B. Met ro Solutions and R adican ’ s issues Metro Solutions and Radican bring one “ Gl o b al Issue ” w it h nine su b parts:
Glo bal Issue

— Did the trial court err and ab use its disc re tion in entering the Decemb er 6 and January 9 no

- answer default judgments? Subsidiary Issues Include :6 (a) Restricted Appeal

— Have Appellants met the requir ements f o r a restrict ed appeal? (b) Err or on the Fa ce of the R ecord

— Is there error on the face o f the record, requiring a r eversal or modification of t he two judgments? (c) Void Judg

ment

— Is the Janu ary 9 judgment void because it was entered after the trial c o u rt lost jur is diction? (d) Act ual Damages

— Is there legally insufficient e vidence to s up port the awards of actual d amages under legally correct measures of damages? (e) Doubl e Recoveries

— Do th e two judgments (together) erroneously award Smith double re c overies of a ctual damages, ad diti onal DTP A damages, and attorney’s fees? (f) Addition al DTPA Damages

— Should the awards of additional DTPA dam ages be reversed f or a redeterm ination? Alternatively, should the awards be reduced so that Smith re covers o nl y treble da ma ges, not quadrupl e da mages? (g ) Attorne y’s Fees

— Should the awards of at to rney’s fees be remanded for a redetermination? Did Smit h fail to properly se gregate at torney’s fees? (h) Economic

- Loss Rule

— Should the negligence and com mon

- law f r aud claims b e eliminated, sinc e t hey viol at e the eco nomic

- loss rule? (i) F raud

— Shoul d the common

- law fraud and fr audulent inducement claims b e eliminated because Smith’s cl aims lie in contract?
C. The Default J udg ment Aga inst Radican
Radi c an argu es that th e December 6, 2019 de fa u lt j udgment wa s a final judgment , that th e tr ial court ’ s plenary jur isdiction expired thirty days la ter on January7

5, 2020, 1 and th at the tria l cour t ’ s J anuary 9, 2020 default ju dgment is therefore void. 2
We a gr e e. The D ecember 6, 20 19 d efa ul t judgme nt ag ainst M e tro Solutions co n cluded
with la ngua ge that the T e xas Supr e me Court has held renders a judgment final: “ Thi s judgme nt, having dis posed of al l parties and all clai ms, is f i na l and appeal able. ” S ee In

re Elizondo , 544 S.W .3d 8 24, 825 (Tex. 2018) (ori g. proceedi ng ) ( “ This judgment is final, disp oses of all claims and all parties, and is appe alable. ” ) ; In re Daredia , 317 S.W.3d 247, 248 (Tex. 20 10) (orig. proceeding ) ( “ Thi s judgm e nt disposes of al l parties

a nd all claims in thi s cause of action and is t herefore FI NA L. ” )

. Although no “ magic
l angua ge ” renders a judgment fina l , “ a trial court may express i ts intent to ren der a final judgment by describing i ts action as ( 1) final, ( 2 ) a disposition of a ll claims a nd parties, and (3 ) appealable. ” Bella Palm a, LLC v . Y ou ng , 601 S.W.3d 799, 801 (Te x. 20 20)

. When the trial court clearly in tend s to render a fin al judgment, the record cannot gainsay that intent: “ [A] clear and unequivocal statement o f fina li ty must b e

‘ given effe ct ’ eve n if review of the record wou ld u nder mi ne finality. ” Id. The fin al j u dgment might contain error because it imp roperly disposed of a part y or a claim, but

1 Ja nuary 5, 2020, fell on a Sunday, so the trial court ’ s p lenary power t ec hnically
e x p ired o n Monday, Jan uary 6 , 202 0 , but this does n ot change our analysis

. See Tex. R. Civ. P. 4.

2 Because t his issue affects only Radican, w e ref er to it as his issue.8

the complain ing party ’ s remedy is to ap peal: “ If th e final j udgment i s deficient , the remedy come s b y appeal, not by the depri vation of a pp ellate jurisdiction. ” Id. at 80 2.
Becau se t he Decembe r 6, 2019 def ault judgment re cites , “ This ju dgme nt, having dispos ed of all p arties and all clai ms, is final an d appealable , ” t he ju dgment

c le arly and unequ ivocally sta tes t hat it disposes of all c laims and a ll parties , and it is
final

. Se e id. at 801. The quoted lang uag e is incompatible with reserv in g other issues or parties for later disposition. See generally Di merling v. G rodhau s , 261 S.W.2 d 561, 562 (Tex. 1953) (

prov idi ng that a judgment expres sly reservi ng issue s for later d isp ositi on is not fi na l)

. Consequently , t he trial court lost ple nary ju risdiction 30 d ays after December 6,
2019 , s ee Tex . R. Civ. P . 329 b (d) ; Daredia , 317 S.W.3d at 248 , 250 , and th e t rial cour t was witho u t jur i sdiction to enter t he J anua r y 9, 20 20 de fault j udgment against
Radi can . T h e January 9 judgment is void. See Alaimo v. U.S. Bank Tr. N at ’ l Ass ’ n , 551 S.W.3d 212, 218 (Tex. App.

— Fort Worth 2017, no pet .)

. We susta in Rad ican ’ s subis s u es (a) (r estricted appeal req ui remen ts), (b) (error

on the face o f the re cord) , and (c) (void judgm ent).9

D. The De f

ault Judgment A gainst Metro Solutions
1. Damages Under the DTPA
Metro Solutions argues that t he evidence is legally insuffici en t to support the
d am ag e s award ed against it un der the DTPA

. 3 See Te x. Bus. & C om. Code Ann. § 1 7. 5 0(b) (1)

. Th e judgme nt awarded Smit h damages of $8,213.23 , 4 which Smith
arriv ed at in the following manner,

• $3,100 for repa i rs t o an inoperable clos et ; 5

• $4,243.29 for reaso nably n ecessary t emporary housing;

• $224.9 4 for s tor age fe es du e to the delays ;

• $246 for Metro So lut

ions ’ final billi ng statement;

• $300 for termi te treatment that Metro Solut ions had not perfor med; and

• $100 f o r professional cleaning.
I n Smith ’ s petit

i on, he req uest ed damages and provide d a list of breach es and
the dam a ges caused by those bre aches that correspon ds to the damages the trial court

3 Becau se the Dece m ber 6, 2019 judgment did not awa rd an y dama g es against R a di can and be c a use we have h eld that the Janua ry 9, 2020 judg ment against Radican is void, Metro So lutions is the only ap pellant adversely affected by the Dece mber 6, 2019 judgment. We th us res trict thi s argume nt to Met ro Solutions.

4 Smit h s et for th this to tal, bu t t he amoun t s he listed to tal $8,214 .23.

5 S ee Te x. Bus. & C om. Code Ann. § 1 7. 45 ( 1 1) ( “ ‘ Economic dam ages ’ means compensatory damages for pecuniary loss , including costs of repair and replacement. ” )10

awarded in the judgme nt. Thu s , Smith met his burden of pl eading the damages that
he sought. S ee AKIB Constr. Inc. v. Shipwash , 58 2 S.W.3d 791, 809 (Tex. App.

— Housto n [1 st Dist. ] 2019, no pet.)

. Smith ’s affidav it supporting his motion for default judgment add resse d these damages , and the ju dgme nt matche d tho se damages that Smith both p leaded and proved up with his af fidavit. Thus, the da ma ge award is supported b y le gally suffic ient evidence.
We overru le Metro S olutions ’ subissue (d ) (actual damages).
2. T reble or qua druple da mages
In Metro So lutions ’ sub is sue (f) , it mai ntain s that the judgme nt e rr one ou sly

awa rd ed quadru p l e dam ag es inst ea d o f the tr eble da ma g es au thor ized unde r the
DTPA

. See Dal

- Chrome Co. v. Brenntag S w

. , Inc. , 183 S.W.3d 133, 143

– 44 (Tex. App.

— Dallas 2006, no pet.) ; see also Reyelts v. Cross , 968 F. Supp. 2 d 835, 845 n.3 (N.D. Tex. 2013) (discussing wrinkle caused by Tony Gullo Motors I, L.P. v. Chapa , 212 S

. W.3d 29 9,
3 04, 314

– 1 5 (Tex. 2006 ) ) , aff’d , 566 Fed. Appx. 316 (5th Cir. 2014)

. The j udgment awarded Smith $8,213.23 in damage s and an additio nal $24,6 3 9.69 in treble damages. We agree that the judgment erroneously awards
qu a druple damages , sustain Metro S olutions ’ subissue s (a) (rest ricte d app eal

r eq uir e m e nts) , (b) (error on the face of the re cord ) , and (f) (additiona l DTPA
dama g es), and modify the trial court ’ s judg m e nt t o limit the DTPA award to $24,639.69 , which is three times the amount of actual damag es. See Dal

- Chrome Co. , 183 S.W.3 d at 144.11

3. Attor ney ’ s fees
Metro Solut

ions argues in sub issue (g) that the award of attor ney ’ s fees should
be reverse d be cause th e attorney ’ s

- fee affidavit d oes not se gregate between wor k perfo rmed on t hose claims for w hich attorney ’ s fees can be award e d and those claims
for w hich attorney ’ s fees cannot. See Tony Gullo Motors I, L.P. , 212 S .W.3d at 313

. Spec ific al ly , M etro S olutions p oints to Sm ith ’ s petition, which inc luded a c la im for negligence

— a claim for which att orney ’ s fees are not recove rable

. See , e.g. , G ulf States
Utils. Co. v. Low

, 79 S.W.3d 561, 568 (Tex. 2002).
W e agree w

ith Metro Solutions that the a ffida vit su pporting attorney ’ s fees does not segregate be tween work performed on those ca uses of action for which
attorney ’ s fees are recover able and thos e for which they are not. And al though the
attorney ’ s fees at tribut able t o the n e gligence cause of action may b e nom inal,

“ un recoverable fee s [are not] render ed recoverable merely because they are nominal. ”
Ton y Gullo Motor

s I, L. P. , 212 S.W .3d at 313. We susta in Metro S olutions subissue (g) (attorney ’ s fees) a nd remand the awar d of attorney’s fees to the trial court for a new
trial.
4. Other Subi ssues Metro So lutions and Radican h ave oth er sub issues that w e have not addressed , but our abo v e d ispositi o n re nders th ose sub issues mo ot , so we n eed not decide them.
See Tex . R. App. P. 47.1

.12

5. Radican and the December 6, 2019 Defau lt Judgment
In Met ro Solution s and Radican ’ s brief, the y assert that Smith can n o lo ng er recover against R a dican. We agree. T he Decembe r 6, 2019 j udgment was final a nd
d id not grant Smith any relief agai nst Radican . U nde r these circu mstances , the
De ce mber 6, 201 9 judgment effectively den ied Smith ’ s c lai ms against Ra di can on the ir

m erits. See Vance v. Wilso n , 382 S

. W.2d 107, 109 (Tex. 19 64) (stating that when a case is prosecuted to a final judgment, but the judgment does not dispose of all the claims raised by the pleadings, the judgment is construed to deny relief on those claims not
exp ressly add ressed). And Smi t h did not appea l the t ake

- n othing judgment against
Radican.
IV. Conclusi on
We (1 ) vac ate th e trial court ’ s January 9, 2020 d e f ault j udgment aga inst Radican
as void , see Alaimo , 551 S.W.3d at 221 ; ( 2 ) modify the trial cou rt ’ s D e cember 6, 20 19 jud g ment to l imit the DTPA a ward to $24,639.69 , which is thr ee times the amount of

act ual damages ; ( 3) reverse the award of a ttorney ’ s fees in th e December 6, 2019 default judg ment and remand that issue to the trial court for a new tr ial ; an d (4) affi rm the r e maining p ortio ns of the Decem ber 6, 2019 defa ult judgment , including the
denial of Smith ’ s claims a gainst Radican

. /s/ Bonnie Sudderth Bonnie Sudderth Chief Justic e Delivered : December 2, 2021