## NO. 12

- 20

- 00134

- CV

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

DAVID L. ROBERTS D/B/A DAVID ROBERTS TRUCKING , APPELLANT

V.

JAY FULLER ENTERPRI SES, LLC D/B/A FULLER ENVIRONMENTAL , APPELLEE §

§

§ APPEAL FROM THE 392ND

JUDICIA L DISTRICT COURT

H

ENDERSON COUNTY, TEXAS

MEMORANDUM OPINION David L. Roberts d/b/a David Roberts Trucking (Roberts) filed this restricted appeal of the trial c ourt’s order granting a no

- answer default judgment in favor of Jay Fuller Enterprises, LLC d/b/a Fuller Environme ntal. Roberts raises five issues for our co nsideration. We modify and affirm as modified.

B ACKGROUND On October 3, 2019 , Fuller filed the i nstant suit against Roberts in the 392nd District Court of Henderson County, Texas. To explain the context of th e suit, Fuller alleged as follows in his pet ition:

On or about February 11, 2018, Fuller Environmental was dispatched to the scene of a motor vehicle accident involving Defendant ’ s semi

- tractor trailer and two cars, located at the intersection of Highway 175 and County Road 4515 in Athens, Texas. The tractor

- trailer was driven by David L. Roberts and was owned and operated by Defendant David L

. Roberts d/b/a David Roberts Trucking. Because of Defendant ’ s negligence, massive damage was caused to Defendant ’ s vehicle proximately causing a major spill of hazardous materials and pollutants which were discharged from the various parts of Defendant ’ s vehicle which were designed to contain such pollutants and hazardous materials during the normal operations of th e vehicle. The discharge and release of the pollutants were the direct result of damage incurred by the reason of negligence of Defendant.2 As a result of damage to Defendant ’ s vehicle, Plaintiff was requested by Defendant and a Texas Peace Officer to remo ve the hazardous material and pollutants from the highway at the scene of the crash. In accordance with the laws of the State of Texas, Defend a nt is liable to pay for the services rendered by Plaintiff to remove from the crash scene hazardous materials and pollutants. Alternatively, Plaintiff sue s for the value of his services provided to Defendant. Defendant has failed and refused to pay the re a sonable and necessary costs of the cleanup.

A c itation was issued for Roberts on October 4. On October 9, Rober ts was personally served with the citation and a copy of Fuller’s original petition and requests for disclosure. The return of service was fi l ed on October 1 7

. Roberts failed to timely answer the suit. 1 On January 21, 2020, Fu ller submitted (1) a propos ed f inal judgment , (2) affidavit s establishing his damages , and (3) attorney’s fees and a certificate of last known address for Roberts

. On J a nuary 28, the trial court entered a final judgment a gainst Roberts, awarding Fuller $127,237.82 in actual damages , $3,794. 06 in attorney’s fees, $12,723.78 in prejudgment interest, court costs, and post judgment interest. On April 23, the trial court iss u ed a writ of execution and an abstract of judgment. In June, Roberts filed this restricted appeal.

R ESTRICTED A PPEAL R ober ts a lleges four grounds for setting aside the default judgment and granting a new trial: (1) Fuller’s petition failed to plead a c ause of action; ( 2) there is a fatal variance between Fuller’s pleadings and the proof; (3) the tria l court faile d to cond uct a hearing on Fuller’s claim for unliquidated damages; and (4) the damage award is not supported by legally and factually sufficie n t evidence. In his fifth issue, Roberts argues that the judgment contains an incorrect prejudgment interest calc ulation. St andard of Review A restricted appeal is a procedural device available to a party who did not participate, either in person or t h rough counsel, in a proceeding that resulted in a judgment against the party.
See T EX

. R. A PP

. P. 30. It is a d irect att ack on a judgment. Roventini v. Ocular Scis., Inc. , 111 S.W.3d 719, 721 (Tex. App.

— Houston [1st Dist.] 2003, no pet.)

. The elements necessary to prevail on a restricted appeal are that the appellant : ( 1) filed notice of the restricted appeal wit hin

1 See T EX

. R. C IV

. P. 99

.3 six m onths after the judgment was signed; ( 2) was a party to the underlying lawsuit; (3) did not participate in the hearing that resulted i n the judgment he complains of, nor timely file any post judgment m otions or requests for findings of fact and co nclusio ns of law; and (4) is able to demonstrate error is “apparent on the face of the record.” Ins. Co. of State of Pennsylvania v. Lejeune , 297 S.W.3d 254, 255 (Tex. 2009) ; Alexander v. Lynda ’ s Boutique , 134 S.W.3d 845, 848 (Tex. 2004) ; see also T EX

. R

. A PP

. P. 26.1 (c), 30. Only the fourth element

— error “apparent on the face of the record”

— i s in question here

. Although review by restricted ap peal affords review of the entire case and thus permits the same scope of review as an ordinary appeal, the fac e of the record must reveal the claimed

error. Roventini , 111 S .W.3d at 721 (citing Norman Comm c ’ ns, Inc. v. Tex. Eastman Co.
, 955 S.W.2d 269 , 270 (Tex. 1997) (decided under pre decessor writ

- of

- error practice) )

. The face of the record in a restricted app eal c onsi sts of the papers on file with the court when it rendered judgment. Barker CATV Const., Inc. v. Ampro, Inc. , 989 S.W.2d 789, 794 (Te x . App.

— Houston [1st Dist.] 1999, no pet.) (on motion fo r rehearing) (citing G eneral Elec. Co. v. Falcon Ridge Apa rtments J oint Venture
, 811 S.W.2d 942, 944 (Tex. 1991) (decided under writ

- of

- error practice )). Accordingly, we may not consider, as part of t h e record , evidence or documents that were not before the trial court when it rendered judgment. Barker CATV Cons tr. , 989 S.W.2d at
794

– 95 ; s ee a lso General Elec. Co.
, 811 S.W.2d at 944

. Error generally may not be inferred from silence in the record; thu s , absent affi rmative proof of error, a restricted appeal fails. See Alexander
, 134 S.W.3d at 849

– 50 (holding sil ence in t he record on restricted appeal about whether notice was provided in hearing to dismiss for want of prosecution amounts to absence of
p roof of error ). Sufficiency of Fuller’s Pleadings In his first issue, Roberts argues that Fuller did not plea d a cogni zable cause of action in his petition. A default judgment is properly granted if: (1) the plaintiff files a petition that states

a caus e of action; (2) the petition invokes the trial cour t ’ s jurisdiction; (3) the petition gives fair notice to the defendan t of the claim asserted; and (4) the petition does not disclose any invalidity of the claim on its face. S ee Paramount Pipe & Supply Co

. v. Muhr
, 749 S .W.2d 491, 494 (Tex. 1988)

. In an appeal from a default judgment, an appellate court does not conduct a review of the sufficiency of the evidence to support a defendant’s liability. Hankston v. Equable Ascent Fin. ,4 382 S.W.3d 631, 633 (T e x. App.

— Beaumon t 2012, no pet.) (citing Texaco , Inc. v. Phan , 137 S.W.3d 763, 770 (Tex. App.

— Houston [1st Dist .] 2004, no pet.) ) . But a default judgment must be supported by a petition that states a cause of action against the defendant. Fairdale Ltd. v. Sellers , 651 S. W.2d 725 (Tex. 1982)

. Texas fo llows a “fair notice” standard for pleading, which looks to whet her the o pposing party can ascertain from the pleading the nature and basic issues of the controversy and what testimony will be relevant. Horiz o n/CMS Healthcar e Corp. v. Auld , 34 S.W.3d 887, 896 (Tex. 2000) ; see also T EX

. R. C IV

. P. 47(a) (a pleading “sh all conta in

... a short statement of the cause of action sufficient to give fair notice of the claim involved”)

. The fair notice pleading standar d serves to pro vide the opposing party inform ation adequate for him to prepare a defense, but also relieves the pleader of the burden of pleading evidentiary matters with meticulous particularity. Elite Door & Trim, Inc. v. Tapia , 355 S.W.3d 757, 766 (Tex

. App.

— Dallas 2 011, no pet.) ; Bowen v. Robins on , 227 S.W.3d 86, 91 (Tex. App.

–– Houston [1st Dist.] 2006, pet. d enied)

. In determining whether a pleading is adequate, we examine whether an opposing attorney of reasonable competence, on review of the pleadi n gs , can ascert ain the nature and the basic issues of the controversy. Tapia , 355 S.W.3d at 766;
Bowen
, 227 S. W.3d at 9 1. When, as here, no special exceptions are filed, we construe pleadings liberally in favor of the pleader. Auld
, 34 S.W.3d at 897

. A petition is su fficient if a cause of ac tion reasonably may be inferred from what is stated in the petition, ev en if an element of the action is not specifically alleged. Westcliffe, Inc. v. Bear Creek Const., Ltd

. , 105 S.W.3d 286, 292 (Tex. App.

–– Dallas 2 003, no pet.); see also T EX

. R. C IV

. P

. 45(b) (“That an allegation be evidentiary or be of legal conclusion sh all not b e grounds for objection when fair notice to the opponent is given by the allegations as a whole.”). “Mere formalities, minor defects, a n d technical in sufficiencies will not invalidate a default judgment where the petition states a cause of action and give s ‘fair notice’ to the opposing party of the relief sought.” Stoner v. Thompson , 578 S.W.2d 679, 683 (Tex. 1979)

. Roberts argues that F u ller’s petit io n does not allege a cause of action and contains only “vague and incomplete allegations.” Specif ically, R oberts argues that Fuller failed to plead that (1) Roberts owed Fuller a duty or that he breached any duty; (2) the parties entered into an
express c on tract; (3) Fuller breached a term of a contract; (4) Fuller performed services within the scope of a cont ract; and (5) Fuller fully performed under a contract.5 In order to plead a cause of action for breach of contract, a party must allege: (1) a
contra ct ual relationship between the parties; (2) the substance of the contract that supports the pleade r’s right to recover; and (2) a breach of the contract by the defendant. See, e.g., Gutierrez v. Portfolio Recovery Assoc s . , LLC , No. 03

- 13

- 0031 1

- CV, 2015 W L 8 69178, at *3 (Tex. App.

— Austin Feb. 26, 2015, pet. denied) (mem. op.) ; Hur v. City of Mesquite , 893 S.W.2d 227, 233 (Tex. App.

— Amarillo 1995, writ denied) ; Gonzalez v. City of Harlingen
, 814 S.W.2d 109, 112 (Tex. App.

— Corpus Christi 1991, wr it denied)

. Roberts c ites Sellers to support his argument that Fuller failed to plead a cause of action for breach of con tract

. 6 51 S.W.2d at 725

. In Sellers , the plaintiff sued the defendant and alleged in her petition that the kitchen cab inets install ed in her to wnhome were defective. Id. T he Texas Supreme Court reversed the trial
court’s order granting a default judgm ent again st the defendant because the plaintiff’s petition failed to allege a valid cause of action

. Id. at 726. The court reasoned that the pl aintiff failed to allege that the defendant (1) was a party to the contract, (2) built the home, (3) installed the cabi nets , (4) was responsible for the defects, or (5) warranted the cabinets. Id. We conclude that Sellers is distinguishable f rom this cas e because Fuller identified Roberts as the party who requested Fuller clean up the hazardous materials

. Moreo ver,

c ons truing the pleadings liberally, w e conclude that Fuller’s petition sufficiently pleads a cause

o f action for breach of contra ct against R oberts . The petition alleges that Roberts requested that Fuller clean up the hazardous materi als expelled fro m Robert s ’ truck during the collision

. Roberts agreed to remove the hazardous materials and performed the cleanup

. Further, the petit ion alleges that Fuller breached the contract by failing to pay Roberts for his services. These allegations are sufficien t to allo w Roberts to “ ascertain the basic nature and the basic issues ” of Fuller ’ s b rea ch of contract claim. Tapia , 355 S.W.3d at 76 6; Bowen
, 22 7 S.W.3d at 91

. Thus, we conclude that Fuller’s petition sufficiently pleaded a breach of contract claim again st Robert s. See, e.g., Gutierrez , 2015 WL 869178, at *3 ; Hur , 893 S.W.2 d at 233; Gonzalez , 814 S.W.2d at
112.
W e overrule Roberts’ f irst issue. Variance In Roberts’ second issue, he argues that there is a fatal variance between Fuller’s pleadings an d the aff idavit he made and attac hed to the proposed default judgment. He contends that Fuller’s affidavit attempts to prove a suit o n a sworn ac count and this variance precludes6 recovery upon any contract theory. Fuller cites Caruso v. Krieger for this contentio n. 698 S.W.2d 760 (Tex. App.

— Austin 1985, no writ). In Carus o , the court held that the default judgment was not supported b y the pleadi ngs because the plaintiff’s petition sought specific performance but the default judgment awarded monetary dam ages. Id

. at 762. We fail to see how the Caruso holding supports Robe rts’ argument

. Moreover, a suit on a sworn account is not an i ndependent c ause of action, but rather a procedural rule of proof for certain types of contractual claims. See T EX

. R. C I V

. P. 185 ; Ri zk v. Fin. Guardian Ins. Agency, Inc.
, 584 S.W.2d 860, 862 (Tex. 1979). Roberts further argues that Fuller’s affidavit precludes r ecovery for quantum meruit. H is argument is predicated on the contention that Fuller’s petition failed to suf ficiently state a cause of action for breach of contract. Because we con cluded that Fuller’s petition established a claim for breach of contract , we reject this contention

. W e overrule Roberts’ second issue. Failure to Conduct Separate Hearing on Unli quidated Damages In his third issue, Roberts argues that the trial court ’s failure to conduct a separate hearing

on Fuller’s claim fo r unliquidat ed damages violates Texas R ule of Civil Procedure 243 and requires reversal

. See T EX

. R. C IV

. P. 243 (“ If the cause of action is unliquidated or be not proved by an instrument in wri ting, the court shall hear evidence as to damages and shall r ender judgme nt therefor, unless the defendant shall demand and be entitled to a trial by jury in which case the judgmen t b y default shall be noted, a writ of inquiry awarded, and the cause entere d on the jury docket. ”)

. As previously discussed, Fuller subm itted affida vits detailing his damages and attorney’s fees with his proposed default judgment. The trial court did no t c onduct a formal in court hearing, but rather entered judgment after consi dering the pleadings and the affidavits. Roberts argues that “[f]urnishi ng the court with an affidavit post

- default cannot dispense with [the ] requirement [that the court hear evi den ce].” Ro berts goes on to argue that affidavits “can be probative of unli quidated damages ...[b]ut only when offered and received as pr oof without objection at the trial of unliquidated damages.” Roberts cites Tex. Commerce Bank, Nat ’ l Ass ’ n v. New to supp ort his a rgument. 3 S.W.3d 515, 517 (Tex. 1999)

. In New , the plaintiff obtained a default judgm ent against the defendant and present ed three aff idavits to support his damages at the default judgment hearing ; no oral testimony was heard

. Id

. at 51 5. The court of appeals held7 that the affidavits, constituting hearsay, did not satisfy Rule 243’s requi rement that the trial court “hear evi dence.” Id. at 516; see also T EX

. R. C IV

. P. 243

. The court of appeals reasoned that Texas Rule of Evidence 802 prohibit ed the us e of affidavits to prove unliquidated damages in the context of a default judgment because Rule 802 anticipates opposing coun sel ’ s and/or an opposing party’s presence at the hearing to object to inadmissible hearsay. Id. at 517; see also
T EX

. R. E VID . 802 (“Inadmissible hearsay admitted without objection shall not be denied
pro bative value merely because it is hearsay.”). The Supreme Cour t of Texas disagreed, holding that “[b]ecause unobjected hearsay constitutes probative evidence, it satisfies the requi rement of Rule 243 that there be evidence of unliquidated damage s.” New , 3 S.W.3d at 517. Roberts

a cknowledges the New hold ing but argu es “to just attach an affidavit to a proposed judgment violates the requirement of Rule 243, that once a defen dant defa ults on a claim for unliquidated damages, the trial court must ‘ hear evide nce.’” However, two of our sister courts have

con sidered this argument and rejected it

. Krawiec v. Holt , No. 05

- 17

- 00307

- CV, 2018 WL 2126858, at *2 (Tex. App.

— Dallas May 7, 2018, no pet.) (mem. op.) ; Silverado Truck & Diesel Repair, LLC v. Law son , No. 0 5

- 18

- 00540

- CV, 2019 WL 1467966, at * 1 (Tex. App.

— Da llas Apr. 3, 2019, no pet.) (mem. op.) ; Vortek Aviation LLC v. Krachinski , No. 01

- 18

- 00165

- CV, 2019 WL 3331027, at *8 (Tex . App.

— Ho uston [1st Dist.] July 25, 2019, no pet.) (mem. op.).
In Lawson , the plaintiff sued the defendant for unliquidated damages ba sed on claim s for violation s of the Texas Deceptive Trade Practices Act, negligence, breach of contract, fraud, and

conver sion. 201 9 WL 1467966, at * 1. The plaintiff moved for a default judgment and attached affidavits to his proposed final judgment which supported t he damage s amount set forth in the proposed judgment

. Id. at * 3

. The trial court signed a final judgment awar ding the plaintiff damages in the amount set forth in the affidavit. Id. On appeal, the defendant argued that the trial court erred by awarding unliquidated damages to the plaintiff without conducting a hearing.
Id. at * 4

. The court rejected the argume nt and he ld that, f or an unliquidated claim where liability is established , evidence of the total amount due is sufficient to support an award of damages and the evidence may be supplied by affidavits. Id. We agree with our sister court’s interpretation of Rule 2 43’s requirements and hold that the trial court did not err by fa iling to hold a separate damages hearing

. W e overrule Robe rts’ third i ssue.8 Legal and Factual Sufficiency of the Damages Award In his fourth issue, Roberts argues that the eviden ce presen ted by Fuller to support the trial court’s damage s awar d is legal ly and factually insufficient. The legal and factual suff iciency of t he evidence to support an award of unliquidated damages may be challenged on appeal from a no

- answer default ju dgment. Argyle Mech., Inc. v. Unigus Steel, Inc.
, 156 S.W.3d 68 5, 687 (Te x. App.

–– Dallas 2005, no pet.). Where a specific attack is made upon th e sufficiency of the evidence to support the trial court ’ s determination of damages in a default judgment, the appellate court must review the evidence produced. Dawson v. Briggs
, 107 S.W.3d 739, 7 48 (Tex. App.

–– Houston [1st Dist.] 2003, no pe t.)

. We wil l sustain

a legal sufficiency or “no evidence” challenge if the record shows one of the following: (1) a comple te absenc e of a vital fact; (2) rules of law or evid ence bar the court fro m giving weight to the only evidence offered to prove a vit al fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence establishes conclu sively th e opposite of the vital fact. City of Kell er v. Wilson
, 168 S.W. 3d 802, 810 (Tex. 2005). We consider the evidence in the li ght most fav orable to the verdict and indulge every reasonable inference that supports it. Id. at 821

– 22. The evidence is legally sufficient if it would enable reasonable and fair

- minded people t o reach the verdict under review. Id. at 827. We credit f avorable evi dence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. See id. In revie wing

a factual sufficiency challenge, we examin e all the evidence and reverse only if the finding is against the great weigh t and prepon derance of the evidence. Whitaker v. Rose , 218 S.W.3d 216, 221 (Tex. App.

— Houston [14th Dist.] 2007, no pet.)

. As part of this issue, Roberts argues that the tri al court’s failu re to conduct an evidentiary hearing and formally receive Fuller’s affidavits i s fatal because “there is effectively no evidence of damages.” Having already concluded that the trial court did not e rr in failing to conduct an evidentiary he aring, we will n ot address this argument. See T EX

. R. A PP

. P. 47.1. Roberts also argues that the evidence is legally and factually insufficient because Fuller referenced an agreement between himself and Roberts w hich precludes any recovery in quantum meruit. Having alr eady concluded that Fuller adequately pleaded a breach of contract claim, we w i ll not address this argument. See id. Roberts further argues that the evidence is legally and factually ins ufficient because Fuller’s affidavit , which explained that his comp any charged $127,237.82 for the cleanup, is9 conclusory by failing to detail wh at materials and equipment w ere used, what tasks were completed, how much time each task required , or when the amount wa s due. Roberts goes on t o argue that the invoice Fuller a ttached is facially defective because the invoice is dated Februar y 12, 2018 a nd purports to be due thirty days later, yet the invoice documents services and materials allegedly provided af ter the i nvoice’s date and in some instances, a week after the due date on the invoice. Roberts further argues that Fuller’s report to the Texas Commission on Environmental Quality (TCEQ) , which Fuller submitted along with his affidavit and invoice “menti ons no wo rk at all being performed on several dates for which the i nvoice has extensive entries and charges.” We have reviewed Ful le r’s affida vit, attached invoice, attached demand letter , and TCEQ report and we disagree. Fuller explains in his affidavi t that he owns a business that engages in “hazmat” work. He explai ns that hazmat refers to both state and federal law which require

en vironmenta l protection necessary after hazardous materials are spilled into the environment. Fuller states that Roberts ’ collisio n resulted in the spill of hazardous materials which requi red remedial hazmat work. Fuller further states that he is certi fied by the a ppropriate agencies to perform hazmat work, details his background in the industry , and asserts his familiarity with the business , materials , and equipment involved. Addit ionally, Fuller states th at his charges ar e normal based on his persona l knowledge o f what other hazmat contractors , similar to his company in the area , charge for similar work and his knowledge and experience of industry standards based on his twenty year s of experience

. Fuller states that the charges for his work total $12 7,237.82. At tached to the affidavit is Fuller’s invoice. The invoice lists the date s and times work was performed, lists t he activity performed , identifies the types and quantities of materials used, lists the price for the activity perfo r med/materials u sed, and stat es the total amount due for each entry. The invoice shows Fuller’s company performed work for Roberts on Febru ary 11

- 12, 16, 18

- 21, 23, and 26 and March 1 , 12

- 15, and 23 o f 2018. Fuller also submitted his TCEQ report which provides a detaile d narrative s ummary of the cleanup

. B ecause Fuller’s affidavit, invoice, demand letter, and TCEQ report detail the factual bas es for his damages , we disagree with Roberts’ contention t hat the three documents are “conclusory

. ” See Padilla v. Metro. Transi t Auth. of Ha rris C ty

. , 497 S.W.3d 78, 86 (Tex. App.

— Houston [14th Dist.] 2016, no pet.) ( to avoid being conclusory an affid avi t must contain factual bases for its conclusions).10 W e are equally un persuaded by R oberts’ argument that the evidence is insuffic ient because Fuller’s affidavit did not establish when payment was due. Fuller cites Collins Fin

. Serv s . , Inc. v. Guerrero , wh erein the court held that an affidavit in a default

- judgme nt case was insuff icient because it merely recited an outstanding balan ce and did no t state when the balance was payable

. No. 05

- 07

- 01732

- CV, 2009 WL 3032479, at *2 (Tex. App.

— Dallas Sept. 24,
2 009 , pet. denied) (mem. op.). In Guerrero , the plaintiff sue d the defendant for breach of a retail installment agreement, moved for a default ju dgment, and attempted to support its damages by attaching an account statement ind icating a past due balance an d a sworn affidavit from the plaintiff’s unidentified “design ated agent ” stating

[t]hat the foregoing and annexed account, claim, and cause of action ... against [Guerrero] ... in the sum of $6,357.44 Dollars [sic], together w ith interest at the rate of 6% per annum per the terms and conditions, which amount is wi thin the knowledge of affiant just and true, and that it is due and tha t all just an d lawful offsets, payments and credits have been allowed.

Id. at *1. The court ack nowledged that, for an unl iqu idated claim where liability is established, evidence of t he total amount due is sufficient to support an award of damages and th e evidence

ma y be supplied by affidavits. Id. at *2. The court held that the plaintiff could not rely on his agent ’ s affid avit b ecause the agent/affiant did not positively and unqualifiedly represent the facts as disclosed in the affidavit to be true and within the a ffiant ’ s personal knowledge , thus the source of the affiant ’ s kn owledge was not stated and legally insufficient to es tablish the plaintiff ’ s da mages

. Id. While the plaintiff was able to rely on deemed admissions to establish the principal am ount owing an d the contractual interest rate, no evidence in the record established the date of th e defendant’s default. Id

. T h u s, the court held the evidence insuffic ient because the plaintiff did not establish the date of the defendant’s default render ing it imposs ible to calculate the interest due on the outstanding balance. Id. , 2009 WL 3032479, at *2. In this case, Ful ler se nt a letter to Roberts on April 17, 20 18 , stating “[p]lease be advised this is our first attempt to collect the invoice amount from you in the amount of $127,937.82.” Fuller attached this demand letter , along with his aff idavit, invoice, and TCEQ re port , to his proposed default judgment. T hus, we conclude that Guerrero is inapposite in this case. Roberts has failed to provide this C ourt wi th authority, nor are we aware of any, that supports his argument that the date disc repancy on the invoice rend ers t he evidence insufficient

. Moreover, w e disagree that the date of the invoice or the minimal inconsistencies in the dates of11 se rvice reflect ed o n the invoice and the TCEQ report render the evidence insufficient. Roberts’

as sertion that the TCEQ repor t men tions no work at all being performed o n several dates for which the invoice has extensive entries and charges is misleading. T he TCEQ repor t is written in narrative form and is best described as a summary of the cleanup pro cess

. While the report doe s not detail every date that Fuller perform ed services, its overall description of the project is consistent with the invoice

. We t herefore conc lude that Fuller’s affidavit, attached invoice, demand letter, and report provide legally and factu ally suffici ent evidence to supp ort the trial court’s damage s award. See City of Keller
, 168 S.W.3d at 810 ; see also Whitaker , 218 S.W.3d

at 22 1

. We overru le Roberts’ fourth issue. Prejudgment Interest In Roberts’ fifth issue, he argues that the judgme nt contains a n incorrect calculat ion of prejudgment interest

. 2 Fuller concedes this point. Roberts and Fuller agree that prejudgment interest a t the applica ble five percent rate on the $127,237.82 damage award amounts to $8,192.02. Accordingly, we susta in Roberts ’ f ifth issue and modif y the judgment to reflect t he
correct pre
- judgment interest amount.

D ISPOSITION Having overruled Roberts’ firs t four issues and sustained his fifth issue, we modify the judgment to reflect prejudgment interest in the amou nt of $8,192. 02. We affirm the t rial court’s judgment as modified

. B RIAN H OYLE Justice

Opinion delivered March 18, 2021. Panel consisted of Wo rthen, C.J., Hoyle, J., and Neeley, J.

2 As part of his f ifth issue, Roberts argues that the prejudgment interest should only be computed on $34,711.80, the charges reflected on Fuller’s inv oice for February 11 and 12 , because the invoice is dated February 12. Having already concluded that the invo ice date does not render the evid ence insuff icient to support the damage s award, we will not address this argument. See T EX

. R. A PP

. P . 47.1.

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MA RCH 18 , 2021

NO. 12

- 20

- 00134

- CV

DAVID L. ROBERTS D/B/A DAVID ROBERTS TRUCKING , Appellant V. JAY FU LLER ENTERPRI SES, LLC D/B/A FULLER ENVIRONMENTAL , Appellee

Appeal from the 392nd District Court of Henderson County, Texa s (Tr.Ct.No. CV19

- 0591

- 392 )
THIS CAUSE came to be heard on the oral arguments, appellate record and the brief filed herein, and the same being co nsidered, because it is the opinion of this court that the judgment of the court below should be modified and as modified, affirmed.
I t is the refore ORDE RED, ADJUDGED and DECREED that the judgment of the court below be modified to reflect pre judgment inte rest in the amount of $8,192.02 ; in all other respects the judgment of the trial court is affirmed ; all costs are adjudged against Appellant, DAVID L. ROBERTS D/B/A DAVID ROBERTS TRUCKING , and that t his decision be certified to the court be low for observance

. Brian Hoyle , Justice

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.