Danny Hightower v. The Phoenix Insurance Company as Subrogee of Cornerstone Church, Edgar Crabtree, Richard and Traci Boykin as Next Friends of Tenay Boykin, and Craig Callaway as Next Friend of Hannah Callaway--Appeal from 62nd District Court of Franklin County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-06-00008-CV

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DANNY HIGHTOWER, Appellant

V.

THE PHOENIX INSURANCE COMPANY AS SUBROGEE OF CORNERSTONE CHURCH, EDGAR CRABTREE, RICHARD AND

TRACI BOYKIN AS NEXT FRIENDS OF TENAY BOYKIN,

AND CRAIG CALLAWAY AS NEXT FRIEND

OF HANNAH CALLAWAY, Appellees

On Appeal from the 62nd Judicial District Court

Franklin County, Texas

Trial Court No. 10,030

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Danny Hightower was the owner of a vehicle which was involved in an accident. After The Phoenix Insurance Company paid various claims arising from the accident, it sued Hightower and the driver of the vehicle to recover on its subrogation claim. Hightower, though served, did not answer, and a default judgment was taken against him. In Hightower's restricted appeal, the parties agree that the affidavit seeking to prove the damages admittedly unliquidated was inadequate for that purpose. What they disagree about is whether the judgment should be completely vacated or just reversed as to damages only.

When a no-answer default judgment is taken on an unliquidated claim, only the amount of damages remains unadmitted. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992); Argyle Mech., Inc. v. Unigus Steel, Inc., 156 S.W.3d 685, 687 (Tex. App. Dallas 2005, no pet.); Arenivar v. Providian Nat'l Bank, 23 S.W.3d 496, 497 (Tex. App. Amarillo 2000, no pet.). In such a case, the trial court must take evidence on the damages. Tex. R. Civ. P. 243; Heine, 835 S.W.2d at 83; Argyle Mech., Inc., 156 S.W.3d at 687. In this case, it is uncontested that the proof on damages has failed. If we sustain a no-evidence point on the unliquidated damages included in a no-answer default judgment, we are to remand for a new trial on unliquidated damages only. Heine, 835 S.W.2d at 86; Morgan v. Compugraphic Corp., 675 S.W.2d 729, 734 (Tex. 1984); Argyle Mech., Inc., 156 S.W.3d at 687.

We reverse the damages portion of the default judgment and remand to the trial court for further proceedings regarding damages only.

Josh R. Morriss, III

Chief Justice

Date Submitted: April 24, 2006

Date Decided: May 23, 2006