## In the Court of Appeals Second Appellate District of Texas at For t Worth

________ ___________________ No. 02

- 20

- 00330

- CV

___________________________

On Appeal from the 462nd District Court Denton County, Texas Trial Court No. 17

- 10422

- 362

Before Birdwell, Bas sel, and Wallach, JJ. Memorandum Opi nion by Justice Bassel 

### Y UE 

### Q I 

### , Appellant

V



### . H ANYANG 

### A N AND 

### R UOLIN 

### W ANG 

### , Appellees2 MEMORANDUM OPINION
I. Introduction Appellant Y ue Qi failed to file an answer after being served by substitute
service via email and posting the documents on his front door

. The trial cou rt rendered a no

- answer default judg ment aga inst Qi and awarded Appellees Hanyang An and Ruolin Wang damage s and costs tota ling $ 1,348,451.64 , prejudgment interest totaling $111, 201.08, and attorney s ’ fees and n ont axable expenses totaling $70,258.70

. On appeal, Qi a rgues that he is entitled to a new tr ial under Craddock 1 bec ause he was served via h is Gmail account while he was in the process of moving back t o China where Gma il i s blocked ; al ternative l y, Qi arg ues that he is entitled to a new tr ial

o n unliquidated da m ages and atto rneys ’ fees because A ppellees did not plead an indemnity claim and beca use the trial co urt made the award of attorneys ’ fees without hearing evidence

. Appellees did not file a brie f. Because Qi was serv e d via s ubstituted serv i ce by appendi ng the citation and
other documents t o his front door on Februar y 16 , 2018, and d id not leave for Chin a unti l March 12 , 2 018 , and because he stated tha t his plan was to wait and see what
evidence Appellees would put on a nd then appeal if it d i d not go we ll for him , he has

not overcome the ini tial Craddock prong

— that h i s failure t o answ er was not
intentiona l or t he result of conscious indifference. B ecause Appellees did not plead
an indem nity claim but because it is unc lear from the de fault judgm ent how much the

1 Craddock v. S uns hi

ne Bus Lines , 133 S. W.2d 124, 126 (Tex. [Comm ’ n Op.] 1 939).3 trial court awarded for the unp leaded indemnity claim , we reverse and remand for the
trial court to m odify the judgment to delete the damages that w ere awarded for indemnity . And because the trial court abused its discretion by awarding d amages for an unpleaded indemnit y claim, we reve rse the portion of the judgment awarding attorneys’ fees and remand the cause to the trial court for a redetermination of the amount of reasonable and necessary attorneys’ fees.
II. Factual an d Procedural B ackground 2
In Oc tober 2016, Appellees and Qi, al ong with Yutian Zhang , 3 commenced discussions regarding a potential in vestment in a Ba reburger franchise to be located in
the Dallas/Fort Worth metroplex. Qi and Zha ng represented to Ap pe l lee s that the y had substantial net worth and would not only be able to pay their portion of the anticipated capital and costs but t hat they would b e able to cover any future liabilities
of the to

- be

- formed company

. The parties agreed to form a li mi t ed liability company owned 50% by An and 50% by Z hang

. The following mont h, A n and Zhang e xecuted the Company Agreement of
Omib ear Resta urant M anagement LLC

. Pursuant to the O mibear Agreement,

2 In a no

- answer default judgment, the defendant ’ s failure to answer ope rates as an admis sion of all the material fa cts alleged in the plaintiff ’ s petitio n, except for
un liqui dated damages. D olg encorp of Tex., Inc. v. Lerma , 2 88 S.W.3d 922, 930 (Tex. 2009); Holt Atherton Indus., Inc. v. Heine , 835 S.W.2d 80, 83 (Tex. 1992). We th er efore b orr ow heavil y from Appellee s ’ original petition for the factual back ground

.
3 Zhang w as ma rried to Q i when the events that fo rmed the basis of th e suit occurred , but she is not part of this appeal

.4 Omibear was formed for the pu rpose of enter ing in to a franchise a greement and
d eveloping, opera ting, owning, and managing a Bareburger restaurant. In January 2017, Omibear ente re d into a franc hise agreement with Bareburger Group LLC. Five days after entering into the fra nchi se agree ment wit h Bareb urger, Qi sent an invoice purportedly received by Qi from Bareburger in the aggregate amount of $440,000 for (i) an initial fra nchise fe e of $5 0,0 00 ; (ii) $275,000 for equipment,
furniture , and fixtures; (iii) $50,000 for a poin t

- of

- sa le computer sy st em; (iv) $5,00 0 for advertising; and (v) $60,000 for blueprints and design

. At the time, Qi repr esented to An that Qi had alre ady p aid the ent ire $440,000 to Bareburger from his personal funds and that An, therefore, owed Qi $2 20,000 for An’s port io n of the i nvoi ce. In reliance upon Qi’s representations, An pa i d a total of $220,000 to Qi and his fam ily members via five sep arate tra nsfer s : An’s mother sent Qi’s mother $100,000 ; An
wired $6,000 to Zhang ; An paid Qi $50,000 and $59,000 via two t ransactions; a nd An paid $10,000 ($5,000 of which was owed b y Zhang) to Omibear’s checking account as a capit al contribution

. Appelle es late r learned that Qi had never paid the invoice

amount to Bareburger

. Shortly aft er An contributed $5 ,0 00 to the Omib ear checking account for An’s capital contribution and an additional $5,000 for Zhang’s capital co ntribution, Qi
wit hdrew the entire $10,000 , and such amount was used by Qi and Zhang for their own personal benefit and no t for Omibear

.5 In June 2017, Omibear entered into a ten

- year lease with Excel Southlake I LP (landlord) for a space located in a Southlake shoppi n g center
. In connection with the
l ease, Appellees , Qi , and Zhang each executed l ease g uaranties

. Prior to en te ring into
the l ease g uaranties, Qi and Zhang represented that they had sufficient financial

means to perform u nder the l ease a nd to satisfy any obligations of Omibear should Omibear for any r eason be unable to perform its obligations under the l ease. In signing the l ease g uaranties, Appellees relied on Qi and Zhang ’s representations with regard to their pe rsonal ne t worth and their ability to per form under the l ease
g

uaranties should Omibear fail or be unable to meet any of the obligations un de r the
l ease. To further eliminate any of Appelle es ’ concerns with res pect to the l ease
g

uaranties, Qi re presented to An that Bareburger would guarantee t he l ease for a fee
of $120,000 and that An would only have to pay $30,000 o f the $120,000 with th e remaining $9 0,000 to be paid by Qi. An , i n r e l i a n c e o n Q i ’ s r e p r e s e n t a t i o n , transfer red $30,000 to Q i’s perso nal ban k account for payment of the fee to
Bare bur ger in exchange for Bareburger’s guaranty of the l ease. S ubsequently, Qi
advi se d An that Bare burger returned the $120,000 fee to Qi’s personal bank account, but Qi never returned to An any portion o f the $ 30,000 that An had paid

. I n July 2017, Qi conta cte d An and represented to him that Bareburge r was requesti ng tha t Omibear send a payment of $34,60 0 for a design fee

. An wired to
Omibe ar’s account the aggregate amount o f $70,0 00 to c over the d esign f ee payable6 to Bareburger and other operational paymen t s fo r Omibear that Qi claimed An

ne ed ed to pay
. A ppellees later l earned that (i) Bareburger never requested a d esign
f

ee; and (ii) a lthough An transferred $34,60 0 from Om ibear’s account to pay Bareburger, upon Bareburger’s receipt of the funds, Qi contac ted Bareburger and
instructed B areburger to p ay the $34,600 receive d from Omibear’s checking account to Qi’s personal bank account. Pursuant to Qi’s instru ctions, t he $34, 600 was paid to Qi. During 2017, A n paid a dditional amounts to Qi and on his behalf as he requested , including ha vi ng h is (An ’ s) father transfer $36, 232 to Qi ’ s mother

. In
Se ptem ber 2017 , Qi , Zhang, or both Qi and Zhang made unauthorize d and

une xplaine d withdrawals tot aling $12,700 from Omibear ’ s business checking account.
In October 201 7, Appellee s bega n to uncover the falsity of many of Qi ’ s prior representations and the misuse of funds paid b y An to Qi or to Omibear includ ing,
but not lim ited to, Qi and Zhang ’ s failure to pay the $ 440 ,000 to Bareburger as represented and Qi’s instru cti ons to Bare bu rger to deposit the d esign f ee directly in to Qi’s personal bank account
. When confronte d, Qi and Zhang admitted th at they h ad
made misrepresentations to Appellee s and had used funds that An had sent to them

or to Omibear for their o wn persona l b e ne fit. Qi and Zhang assured Appellees that Appellee s would be repaid the entire amount of funds that Q i and Zha ng had misappropriated , as well as the $36,232 loan that An h a d sent Qi’s mother and other
amounts that An had l oaned Qi pe rsonally

.7 Shortly th ereaf ter, Qi executed an d delivered to An a p romissory n ote dated October 17, 2017, payable to An in the princi pal amoun t of $1 04,720 , together with interest on the unpaid principal balance at six percent per annum (the An No te ). T he
An Note wa s pay abl e i n full on October 31, 2017, at which time all outstanding principal plus all accrued but unpaid interest wa s imme diately due and payable. Additionally, on October 17, 2017, Qi executed and delivered to Omibear a
p romissory n ot e da ted October 17, 2017, p aya ble to Omibear in the principal amount of $147,700 , together with interest at six percent per an num (the Omibear N ote ). The
Omibear Note wa s payable on October 31, 2017 , at which time all outstanding
pr incipal plus a ll acc rued but unpaid interest wa s i mme diately due and payable. When
the An Note and the Omibear Note matured on October 31, 20 1 7, Qi fai led to pay
any p ortion o f the principal or the accrued but unpaid interest on the notes. Appellees h ir e d c ounsel, who by l etter dated November 2, 2017, ma de demand
upon Qi and Zhang for the aggregate sum of $467,706.75 to be paid on or be fore
No vember 7, 2017, and advised Qi and Zhang that Appellee s intended to fil e a legal proceeding to co llect the amou nt unl ess Qi and Zhang timely executed the d emand
l ett er and agreed to pay $467,706.75 pursuant to the schedule below: • $54,036.75 to be paid on or be fore No vember 10, 2017; • $75,500 to be paid on or before November 24, 2017; • $128,170 to be paid on or b efor e December 15, 2 017; • $123,830 to be paid on or bef ore January 15, 2018; and8 • $86,170 to be paid on or before January 31, 2018.
In the letter, Appellee s also demanded that Qi and Zhang take action to have Appellees removed as guarantors of th e l e ase on or before November 24, 2017

. On or about November 7, 2017 , and November 14, 201 7, Qi and Zhang signed
the demand le tter ther eby agr eeing to pay the aggregate sum of $467,706.75 in
accordance with the schedule set forth in the letter an d to c ause the landlor d to
release Appellees from any obligation under the lease g uarant ies on or befor e November 24, 2017, which deadli ne was ex tended to December 8, 2017 , by agreement of the parties. Although untimely, Qi and Zhang made the init ia l pa yment of $54,036 .75 to Appellees

. Qi and Zhang failed t o pay the second inst allment due and payable under
the terms of the l etter a greemen t in the amount of $75,500

. Qi and Zhang also failed
to obtain t he release of Appe llees from the l ease g uaranties by t he deadline provided
in the l etter a greement. After repeated requests for payment and for Qi and Zhang to perform t heir ob ligations under the letter agreement were not carried out , Appellees
filed suit against Qi and Z hang in De cemb er 2017 , (1) all eging claims for breach of
contract, “ claim on note, ” fraud, theft, conversion , ne gligent misrepresentation, money had and rece ived, a nd unju st enrichment and (2) seeking attorneys ’ fees. Appe llees obtained an order allo wi ng s ubstit uted servi ce on Qi

. In June 2018, the landlord filed suit against Omibear, Appellees , and Qi for
defa ulti ng on the lease by faili ng to m ake rent payments

. In the landlord suit, the9 landlord moved for summary judgme nt aga inst all parties and requested the amount lawfully found due on the l ease ($843,930.99), plus attorneys ’ fees ($1,500.00), together with int ere st at the legal rate from the date of the judgment until paid in full

. In February 2019 , a fter Qi had f aile d to answer Appe llees ’ suit , Appelle es filed
a motion for default judgment

. T he trial court granted the motion for default judgment, st ating tha t [t] he [c] ourt has read the pleadings and the papers on file, and is of the opinion that the alle ga tion s of [the] Origi nal Pe tition have been admitted, and [Appellees ’ ] claims for [] (i) breach of contract; (ii) suit on the An Note; (iii) theft un der the T e xas Th eft Liability Act; (iv) conversion; (v) money had and received; and (vi) unju st enrichment [ ] are l iquidated in th e amount of $1,347,754.59. Additionally, the [c] ourt finds that, on good and sufficient evidence presented to the [c] ourt, [Ap pellees ] s houl d recover their taxable court costs which the court finds to be $697.05, their reasonable and n eces s ary attorney s ’ fees which the court finds to be $70,209.90, an d their non

- taxable expenses which the court finds to be $48.80. [Footnote defi ning the A n No te omitted.] The trial court also awarded Appellees $111,201.08 as pr ejudgment inte re st. Althou g h the tria l court signe d the def ault judgment against Qi on Au gust 14, 2019, the case continued because Appellees had claims pe nding aga inst Zh ang. Eleven mon ths later, t he tr ial court held a bench trial and entered a p ost

- a nswe r default judgm e nt against Zhang on July 22, 2020.
On Augus t 21, 2 020 , Qi filed his motion for new trial an d alternative motion
for remittit ur . The motion was overrule d by ope ration of law

. See Tex. R. Civ. P.
329b ( c ). After th e moti o n was overrule d by operation of law, the trial court retained plenary power for an additional thirty days. See Tex. R. Civ. P. 329b( e ). Dur ing that10 time , Q i ’ s attorneys set a hearing on his motion fo r ne w trial for October 26, 2020

. Appe ll ees f iled a respon se t he same day as the hearing

. Because the trial court had not had adequate time to review Appellees ’ response, th e hearing was co ntinued until October 29, 2020.
The trial court he ld a hearing on th e mo t ion for new tri al on October 29, 2020

. At the conclusion of the hearing , the trial ju dge stated that she wa s going to finish reading th e parties ’ docum ents and would tell the part ie s her decis ion before th e trial

court ’ s plenary p o wer expired on N ov e m ber 4, 2020

. H owever, n o written order appears in the record.
II I
. First Craddock Pron g Was Not Met We begin with Qi ’ s third issue because it woul d entitle him to the gre at est
relie f

— a new trial on liability, damages , a nd attor ne ys ’ fe es , u nlike his othe r issues that are limited to damages and attorn eys ’ fees

. In his third i ssue , Qi argues t hat the t rial

co urt abused its di scretion by ref using to grant a new trial under Craddock

. Al though Qi provide s an ex p lanati on for his failure to answer the suit , hi s explanation does not meet the first prong of Craddo ck to sh ow that h is failur e to an swer was not intentional
or the result of conscious indifference.
A. S t andard of Review and Applic able Law
We have previou sly se t fort h the standa rd o f review and th e Cr addock test as follows:11 We review a trial cour t ’ s den ial of a motion f or new tr ial for abuse of discretion. In re R.R

. , 209 S.W.3d 112, 114 (Tex. 2006). A default judgment should be set aside and a n ew trial grant ed if ( 1) the fail ure to answer was n ot i ntentional or the result of conscious indiffer ence bu t was due to a mi stake or acciden t, (2) the defendant sets up a m eritorious defense, and (3) the motion is filed at such time that granting a new tr ial woul d not re sult in delay or oth erwise injure t he p laintiff. Id. at 114

– 15 (citing Craddock [ , 13 3 S.W.2d at 126 ] ). The defendant ’ s burd en as to the first Craddock elem ent has been satisfied when the factual assertions, if true, negate intenti onal or consciously in di ffer e nt conduct by t he defendant an d th e factual ass erti ons are not controverted by t he plaintiff. Sutherlan d v. Spen cer , 37 6 S.W.3d 752, 755 (Tex. 2012). Consciously indifferent conduct occurs when “the de fendant knew it was sued but did not care.” I d. “W h en determining whether the def enda nt ’ s failure to file an answer was intentional or due to conscious ind ifference , a cou rt looks to the knowledge and ac ts of the defendant.” R.R. , 209 S.W.3d at 115. So me excuse, although not necessar ily a good
one , will suffice to show that a defenda nt ’ s failure to f ile an answer was not because he did not care. Sutherlan d , 376 S. W.3d at 755. However, not understandin g a ci tation and then doing nothing following servi ce does not constitute a mistake of law that i s suff i cient to meet t he Craddock req uire ments. R.R. , 209 S.W.3d at 115. $2,442.00 Cu rrent Money of U

. S

. v. S tate , N o. 02

- 19

- 00021

- CV, 2019 WL 33344 34, at
*1

– 2 (Tex. App.

— Fort Worth July 25, 2019, no pet.) (mem. op.). We must de fer to
the trial court ’ s cr edib i lity determinat ions to determi n e w hether nonappearance was intentional or due to consc ious indi fference. Parso n s v. Parsons , N o. 01

- 18

- 00902

- C V, 2019 WL 5382637, at *4 (Tex. App.

— Houston [1st Dist. ] Oct. 22, 2019, no pet. ) (mem. op.).
B. A n al ysis
H er e, t h e record demons trates that App e lle es obtained an order allowi ng substit uted service

. See Tex. R . Civ. P. 106(b). The order per mitted Appellees t o12 serve Qi by (1) emailing the citation, petition, and a copy of the subst ituted

- service

o rder to Qi ’ s Gmail a ccount and to his attorney ’ s e mail and (2) secur ely affi xing the
citation , petit ion, and a copy of the substituted

- service order to Qi ’ s usual place of abode on University Boulevard

. The record contains t he ser vice of re turn regarding

t he e mail and the return of service from the proce ss s erver s howing tha t the
document s were se rved on Qi ’ s usual place of abode and t hat the s ubstituted service was completed on February 16, 2 018

. Qi argue d in hi s motion fo r ne w trial and argu es on appeal that he did not see
the email until afte r h is answ er w as due becaus e he did not che ck his email b e t ween February 16 , 201 8, and March 13, 2018 (the date that he arrived in C hina). Qi gives

sever al exp l anations for wh y he did not check his Gmail a ccount during that time
fr am e , but we need not det ail his r e ason s. Instead, we fo cus on the othe r form of
substituted service that was effectuated by affixing the docum ents to the door of Q i ’ s residence

. Qi m a kes no mention of that form of substituted service, nor does he explain why h e ignored the cita tion that was af fixed to the door of his residen ce almo st a month before he relocated to China

. Qi admi ts that the citation informed him th a t a default ju dg m ent could be
taken against him if he did not file an a n swer . As for why he di d not f ile an answer
after lear ning abo ut the suit, Qi averred in t he affidavit attached to his motion for new
trial that he did not b e lieve that App el l ees had evidence to prove the amount of money that they claimed Qi owed , that he did not have m oney to p ay an a ttorney , and13 that he the refo re p lanned to wait and see what evidence App ellees p resented and what
the t rial court did ; if it di d not go well f or Qi, he planned to “ appe al and start over. ” Qi assumed that the l e gal process in t he Un ited Stat es woul d operate the same as that
in Ch ina , which he explained as requiring a plain tiff in a default

- judgmen t scenario to put on e viden ce to support hi s c l aims and as allo w ing a default judgment to be challenged under a de novo standard

. Qi urges us to hold that his fai lure to answer was excuse d be cause it was based
on a mistake of law

— his mistaken belief that U nited States cour ts would opera t e the
same as Chinese co urts. In t he Texas Supreme Court case tha t Qi relies on, the
b ank ’ s bran ch p resident did not file a written answe r to the writ of garn ishment because he thought that it was a sufficient answer to free ze the subject a c cou nts and
tender t he balance of the accounts to the court issu ing the writ. Se e Bank One, Tex

. , N.A. v . Moody , 830 S.W.2d 81, 84

– 85 (Tex. 1992). That case is distingu isha ble because
the defendant took an action (as opposed to dec iding o n inaction) th at he thought was the answer that the writ required. See id. at 85. Moreover, that case specific ally stat es that not e very act of a defendant that coul d be characterized as a mistake of law is a

s ufficient excuse. See id. at 84. As ex a mpl e s , the Texas Su p rem e C o urt cites a case in
which an attorney made a conscio us decision not to file an answer ba sed on a
mistake n beli ef abou t the effect of a bankrupt cy sta y and a case in w hich a defend ant read but did not understand t he citation and did nothing

. See id

. ( f irst citing Care y Crutcher, Inc. v. Mi d

- C o ast Diesel Servs. , I nc. , 725 S.W.2d 500, 502 ( Tex. App.

— C or pus14 Chr isti

– Edinburg 1 98 7, no writ) , d i sapproved on other grounds by Dir., State Emps. Workers ’
C

omp

. Div. v. Evans , 889 S.W.2d 266, 268 ( Tex. 199 4 ) ; and then citing Butler v. Dal Tex
Ma ch. & Tool Co. , 627 S .W.2d 258, 260 (Tex. App.

— Fort Worth 1982, no writ ) )

. Th ese exampl es of inaction are more in line with the scenar io bef ore us . Here, Qi ignored the fact that he had been served with c itation and that he had
been instructed that a d efault would be taken if he did not file an an swer. Qi had been represent ed by a n attorney in the United S tat es t hroughout the settlement
negot iations; yet, when that attorney informed Qi that the matter was “ extrem ely
urgent ” and that Qi needed to pay hi s outs tanding invoice in o rder to obtain assistance with this matter, Qi d id no t pay
. Qi i nstead relied on a faulty assumption
that a def ault judgment in the U nited States would operate the same as one in Chin a . Qi ’ s mistake i s not a sufficien t e xcus e.
B ased on this record, we con clude tha t the trial court c ould ha ve properl y f

ound that Qi did not act as a reasonable person would have in s imilar circumstances
and that he ex hibited conscious indifference to filing an answer. Se e Dunn v. Parker , No. 06

- 1 9

- 00036

- CV, 2019 WL 45 59096, at * 3 (Tex. App.

— Texarka na S ept. 20 , 2019, no pe t.) (mem. op.) ( “ Cons equent l y, the trial court could have reaso nably
concluded that [a ppellant , ] knowing that his answer was due and that he needed to
retain anothe r atto rney, was c onsciou sl y indif ferent to his o bligation to do so. ” ); $2,442 .0 0 Cu rrent Money of U

. S

. , 2019 WL 333443 4 , at * 2 ( “ [Appellant] simply stated
that he did not understand and sat idly[.] . . . Withou t more, [ app ellant ’ s ] explanation15 do es not negate con scious in d iffere nce. ” )

. Q i thus failed to meet the first prong o f
th e Crad dock test. See D unn , 2019 W L 45590 9 6, at *4

. According ly, we hold that the trial court did not abuse its discretion by not granting the motion for new trial

. We
overrule Qi ’ s thi rd issu e.
I V
. Indemnity Claim Was Not Pleaded
In his first issue, 4 Qi argues that the t ria l court ’ s d efault j udgment must be set
aside as to the award of unliquidated damag es. 5 Qi lists several reasons to set as ide the unliquidated d amages aw ard , bu t we focus on his ple ading a rgument

— that Appellees did no t a ssert an indemnit y c laim in th ei r origi na l pe tition and did not amend their pe tition to add the claim after the landlord filed suit. Because a trial court

4 Qi ’ s “ Issues Presented ” section couches his first and second issues different ly th an his arguments i n his brief

. We follo w the order th at was used in his brief, recognizi ng as his f irst issue hi s arguments attacking the indemnity award and as his second issue his arguments attacking the award of at torne ys ’ fees. N either issue depends on succe ssfully arguing Craddock

.
5 Although the trial cou rt lab eled the dama ges amou nt as “ l iquid ate d , ” at the he aring on Qi ’ s moti on for new trial , Appellees did not dispute Qi ’ s re classification of the damages pertai ning to the unple aded indemnity claim as unliquidated damages : [ QI ’ S ATTORNEY :] The unliquida ted damage is sepa rate
. [Appellee s ’
a ttorn ey] has zero res ponse to that in his written response on file on the unliquidated damages portion.
THE COURT: O kay. [ APPELLEE S ’ ATTORN EY] : And we don ’ t have any problem with that because we ’ ve already told th ese guys we ’ d agree on that matter, Jud ge.16 cannot aw ard dam ages on an unpleaded claim that was n o t tri ed by implied co n sent , the damages on the unpleaded inde mnity claim cannot sta nd. A default judgment must be supported by the pleadi ngs. See Tex. R . Civ. P. 301; Stoner v. Thompson , 578 S.W.2d 679 , 682 ( Te x. 197 9 ). This rule is a specific applicati on of the more gener al principle that a par ty may not be grant ed relief in the absence of pleadings to support that relief, unless the req uest for relief is tried by

consent

— a situa tion that cannot occur in the c ontext of a default judgment. In re Marriag e of Day , 497 S.W.3d 8 7 , 90 (Tex. App.

— H ous ton [14th Dist.] 2 0 16, pet. denied ) ( first citing Stoner , 578 S.W.2d at 682; and then citing Ma swoswe v. Nelson , 327 S.W.3d 889, 895

– 96 (Tex. App.

— Beaumont 2010 , no pet. ) )

. A default judgment not supported by the pleadings is fundam en t ally erroneous. Car uso v. Krieger , 698 S.W.2d
760 , 762 (Tex. App.

— Austin 1985, no writ). Absent fair notice, a pa rty who f ails to appear at trial will not be held to have tried a n unple aded cause o f action by implied

consent. Stoner , 578 S.W.2d at 685

. He r e, Appe llee s plea ded the following caus es of action in their original petition:
breach of contract , “ c laim on n ote , ” fraud, theft, conversion, negligent misrepresentation, money h ad an d re ceived , and unjust enri chment. As pointed o ut by Qi,
A p pellees ’ original pe tition does [ not ] a ssert an indemnity cla im or seek any damages from Qi ’ s alleged failure to secure rel eases. N or does it allege any facts regarding a lawsuit by the la ndlord or a default of the lease. Indeed, the petition states tha t Qi and Zhang ’ s a cti ons “ exposed [Appel lees ] to potential lia bility to the business ’ s landlord. ” But the17 alleged default o f the lea se did not occur until February 1, 2018 ( [two]
m onths aft er [App ellees] filed the petition) [,] and the landlord did not fil e a lawsuit until fou r months later, on June 1, 2018. Appell ees could have amended their petition

— and served it on Qi

— asser ting a n indemnity claim based on the landlord ’ s lawsuit

. But th ey did not [] and instead tried to slide those alleged dam ages i n a footnote in their mo tion [f] or default judgment. [Foot notes omitted.]
Because there were no pleadings to support judgment f or the amou nt allegedly
due a nd owing to the landlo rd for the alleged breach of the l ease g uaranty by Ap p ellees , the tria l co urt abused its d isc retion by imposing damages based on a claim not included in Appellee s ’ p etition. We sustai n Qi ’ s first issue as to the damages
awarded for i ndemnity and rev erse and remand for the trial court to modify the
defaul t j u dgment to delete the portion of the dam ages attri but a ble to the unpleaded indemnity claim. 6 See Williams v. Asset Acceptance LLC , N o. 03

- 11

- 00520

- CV , 20 12 WL 2989219, at *6 (Tex. A p p.

— Aust in July 20, 2 0 12, no pet.) (mem. op.) (vacating

“ portion of fin al de fault judgment aw ard ing [ a ppellee] amou nts due on the First USA/Chase Bank account ” because a ppel lee did not plead any entitlement to money

6 I t i s unclear from t he default j u dgment how much the trial court awarded for the unpleaded indemnity claim. App e llee s ’ motion for defaul t judgment requested

“ an award of liquidated damages in the amo unt of $ 424,074.73 plus (+) at least $8 4 5,43 0. 99. ” [ Footno t es omitted.] Appelle e s ’ motion for default judgment included a footnote e xplaining that the $845,430.99 was “ the am ount a llegedly du e and owing to [ l ]a ndlord as of December 18, 2018 [ , ] for th e alleged breach of the [ l ] ease [ g] u arant y by [ Appellees ]

. ” A d ding $ 4 24 ,074. 73 to $ 84 5,430. 99 equals $1,269,505,72 , but the default judgment awards $1,347,754.59

. Because the def ault judgment d oe s not give a break down of the amo unt , we must remand for the trial court t o m odif y the judgment by delet ing the amount t ha t it award ed for the unpleaded indemnity claim , there by leaving only the damages for the pleaded claims

.18 damages ba sed on that account and first a sserted a ppell an t ’ s liabil it y for that account as part of its motion f or def ault judgment )

. 7
V. Attorneys ’ Fees Mu st Be Remanded
In his second issue , Qi argues that the default judgment must be set aside for a
new trial on attorneys ’ fees. H aving determ ined that the trial court abused its discretion by awa rdi ng damages for an un ple aded indem nity c lai m, we reverse the
port ion of the judg ment awarding attorney s ’ fees and remand the cause to the trial
court for a redeterminati on of the amoun t of reasonable and necessary attorney s ’ fees

. See Bossier Chrysler

- D odg e II , Inc. v. Rausche nbe rg , 238 S .W.3d 376, 376 (Tex. 2007); Barker
v. Eckman , 213 S.W.3d 306, 314

– 15 (Tex. 2006); Haynes v. Haynes , No. 04

- 15

- 00107

- CV , 2017 WL 2350970 , at *7 (Tex. Ap p.

— San Antonio M ay 31, 2017, pet. denied ) (mem. op.) ; see also Powell El ec. Sys., Inc. v. Hew let t Packard Co. , 356 S.W.3d 113, 129 (Tex. App.

— Houston [1st Dist .] 2011, no pet.) (“Because we have meaningfully
reduced the amount of [appellee ’ s] damages on ap peal, we must re verse the attorney ’ s fees award and remand for a dete rmi nati on of attorney ’ s fee s.”)

. Ac cordingly, w e sustain Qi ’ s second issue.

7 A lternative ly, even if Appel lees had pleaded a claim for inde mnity , t he requested awa rd of approxi mate ly $8 5 0,000 could not st and as it was establi she d at the hearing on Qi ’ s motion fo r new trial that Appel l ees had settled the landlord suit for $50,000. Thus, it wou ld be a tremendou s windfall for Appellees to be aw arded $80 0 ,00 0 more than wh at they settled for.19 VI. Conclusion Having overruled Qi ’ s third issue, we affirm the default judgment as to both liability and the damages on Appell ees ’ claim s for breach of co ntract, “ claim on note , ”
fra ud, theft, conver sio n, neglige nt misrepr esentation, money had and received, and unju st enrichment

. H aving sustained Qi ’ s first issue as to the unliquidated damages
awarded to Appellees for an unplead ed indemnity cla im , we rever se and remand fo r the tri al court to modif y t he default ju dgment to delete the award attri buted to the unpleaded indemnity claim

. H aving sustained Qi ’ s second issue, we reverse and
remand for a new trial as to attorneys ’ f ees. /s/ Dabney Bassel Dabney Bass el Ju stice
Delivered: October 28, 2021