NBS SOUTHERN, INC.,FROM A DISTRICT COURT APPELLANT, v. THE MAIL BOX, INC., APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-00867-CV
 
NBS SOUTHERN, INC.,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE MAIL BOX, INC.,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES STEWART, ROWE, AND OVARD
OPINION BY JUSTICE ROWE
JUNE 21, 1989
ON MOTION FOR REHEARING
        On motion for rehearing, NBS complains that this Court erred in failing to address its ninth through fifteenth points of error which called for rendition of a take-nothing judgment in its favor. NBS contends that those points demonstrated that it was entitled to judgment as a matter of law and that therefore a remand was unnecessary. FN:1 For the reasons discussed below, we overrule NBS's motion for rehearing.
        NBS's ninth, tenth, twelfth, thirteenth, and fifteenth points of error attack the legal and factual sufficiency of the evidence to support findings that NBS was liable under theories of indemnity and recision. It is well-settled that no evidence is necessary in a no-answer default judgment hearing, except as to unliquidated damages. See, e.g., Village Square, Ltd. v. Barton, 660 S.W.2d 556, 559 (Tex. App.--San Antonio 1983, writ ref'd n.r.e.); Gourmet, Inc. v. Hurley, 552 S.W.2d 509, 513 (Tex. Civ. App.--Dallas 1977, no writ). Consequently, we may not review challenges to the sufficiency of the evidence concerning liability in an appeal from a no-answer default judgment. See, e.g., First Dallas Petroleum, Inc. v. Hawkins, 727 S.W.2d 640, 647 (Tex. App.--Dallas 1987, no writ); Castanon v. Monsevais, 703 S.W.2d 295, 297 (Tex. App.--San Antonio 1985, no writ); Wall v. Wall, 630 S.W.2d 493, 496 (Tex. App.--Fort Worth 1982, writ ref'd n.r.e.). Such challenges are inappropriate in such cases because the proceedings in the trial court do not involve the introduction of evidence as to liability to be weighed by a trier of fact. Accordingly, we overrule NBS's ninth, tenth, twelfth, thirteenth, and fifteenth points of error.
        In its eleventh and fourteenth points of error, NBS complains that Mail Box's pleadings were insufficient to allege a cause of action for indemnity or recision. A pleading which fails to state a cause of action cannot support a default judgment. Allied Bank v. Pleasant Homes, Inc., 757 S.W.2d 460, 462 (Tex. App.--Dallas 1988, writ pending); see Stoner v. Thompson, 578 S.W.2d 679, 683 (Tex. 1979). If, however, it is at least theoretically possible that the plaintiff could amend his pleadings to state valid claims, the cause should be remanded rather than judgment being rendered. Allied Bank, 757 S.W.2d at 464; cf. Fairdale Ltd. v. Sellers, 652 S.W.2d 725, 726 (Tex. 1982) (remanding cause after concluding petition did not state a cause of action). Even if we were to sustain NBS's complaints in this case, it is clear that Mail Box could easily amend its pleadings to state valid claims. Thus, NBS is entitled to no greater relief than we have already granted. Such being the case, we need not address on the merits NBS's eleventh and fourteenth points of error.
        We overrule NBS's motion for rehearing.
 
                                                          __________________________
                                                          GORDON ROWE
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
 
88-00867.RF
 
FN:1 Unless it is necessary to remand a cause for further proceedings, this Court must render such judgment as the trial court should have rendered. Lone Star Gas Co. v. Railroad Comm'n, 767 S.W.2d 709, 710 (Tex. 1989); TEX. R. APP. P. 81(c).
File Date[01-02-89]
File Name[880867RF]