TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-25-00845-CV
Jose A. Castilla, Appellant
v.
W&C Investments, LLC, Appellee
FROM THE 98TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-24-010055,
THE HONORABLE DANIELLA DESETA LYTTLE, JUDGE PRESIDING
MEMORANDUM OPINION
Jose A. Castilla brings this restricted appeal from a no-answer default judgment in
which the trial court awarded appellee W&C Investments, LLC (W&C) damages and attorney’s
fees, plus interest. Because W&C submitted affidavits providing sufficient evidence to support
the trial court’s judgment, we affirm.
BACKGROUND
In 2019, W&C leased to Dizfruta Atx, LLC (Dizfruta) 1400 square feet of office
space, known as Suite B2, at 8201 Cross Park Drive in Austin. Castilla cosigned the lease and
executed a “Personal Guarantee” (Guaranty Agreement) that was attached as Exhibit “F” to the
lease and in which he guaranteed Dizfruta’s performance of the lease. Just over a year later, the
parties executed a First Amendment to Lease Agreement (Amendment), which provided that, in addition to leasing Suite B2, Dizfruta would lease from W&C Suite B1, “for a total of 3,520
rentable square feet.” Castilla signed this Amendment, paragraph 6 of which stated, “Personal
Guaranty: The Personal Guaranty as described in Exhibit ‘F’ of the original lease will remain in
effect and will be applicable to the new Net Rentable Area of the Leased Premises.”
The record shows that in November 2024, W&C’s counsel sent demand letters to
Dizfruta and Castilla, seeking $145,242.34 in rents owed through the expiration of the
Amendment, a portion of commission paid to relet the property to another tenant, and costs
incurred as a result of Dizfruta’s allegedly unauthorized modification of the premises. The
amount sought included offsets for the security deposit Dizfruta paid and for the “rents to be
received under the relet lease.” W&C demanded an additional $1,500 for attorney’s fees as of
the date of the letter. In December 2024, W&C sued Castilla, asserting that he breached the
Guaranty Agreement and seeking damages, prejudgment interest, and attorney’s fees. Castilla
does not dispute that he was properly served but did not answer or appear. W&C filed a motion
for default judgment, attaching affidavits by the property’s manager and an attorney. The trial
court rendered a no-answer default judgment in favor of W&C in August 2025, awarding it
$151,018.14 for actual damages, $7,980 for attorney’s fees, and pre- and post-judgment interest.
Castilla filed this restricted appeal, asserting that (1) he has satisfied the jurisdictional
requirements to proceed with a restricted appeal, (2) the Guaranty Agreement does not pertain to
the Amendment, such that Castilla should not be liable for amounts owed under that
Amendment, and (3) the evidence was legally and factually insufficient to support the
default judgment. 1
1 W&C did not file a brief.
2
STANDARD OF REVIEW
To prevail on a restricted appeal, the appellant must show that: (1) the notice of
restricted appeal was filed within six months after the judgment was signed; (2) appellant was a
party to the underlying lawsuit; (3) appellant did not participate in the hearing that resulted in the
judgment complained of and did not timely file any post-judgment motions or requests for
findings of fact and conclusions of law; and (4) error is apparent on the face of the record.
See Tex. R. App. P. 30; Ex parte E.H., 602 S.W.3d 486, 495 (Tex. 2020). The first
three requirements are jurisdictional. Carbajal v. Albiter-Carbajal, No. 03-19-00852-CV,
2021 WL 2371357, at *2 (Tex. App.—Austin June 10, 2021, pet. denied) (mem. op.). Only the
fourth element is at issue in this case.
The face of the record, for purposes of a restricted appeal, consists of all the
papers that were before the trial court when it rendered its judgment. Macut v. Cool Insulation
Co., No. 03-18-00729-CV, 2019 WL 3952840 at *1 (Tex. App.—Austin Aug. 22, 2019, no pet.)
(mem. op.) (citing Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848–49 (Tex. 2004);
General Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942, 944 (Tex.
1991)). Review by restricted appeal affords an appellant the same scope of review as an
ordinary appeal, Ex parte E.H., 602 S.W.3d at 495, which “includes review of legal and factual
insufficiency claims,” Norman Commc’ns v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex.
1997) (per curiam). As a result, determining error on the face of the record ultimately requires
an analysis of the merits of the appellant’s grounds for appeal. Ex parte E.H., 602 S.W.3d at
495. Error may not be inferred from the record and must be demonstrated by the documents in
the record, not from the absence of documents from the record. Gold v. Gold, 145 S.W.3d 212,
213 (Tex. 2004), overruled in part on other grounds by Ex parte E.H., 602 S.W.3d at 496.
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We review the trial court’s grant of a default judgment for an abuse of discretion.
Agraz v. Carnley, 143 S.W.3d 547, 551 (Tex. App.—Dallas 2004, no pet.). We do not presume
the validity of the judgment, and every step of the proceeding from process to final judgment is
open to examination. Patton Child.’s Tr. v. Hamlin, No. 07-07-00488-CV, 2008 WL 3863475,
at *6 (Tex. App.—Amarillo Aug. 20, 2008, no pet.) (mem. op.). In a no-answer default
judgment, all factual allegations set forth in the petition are deemed admitted, except the amount
of damages. Texas Com. Bank, Nat’l Ass’n v. New, 3 S.W.3d 515, 516 (Tex. 1999). The
appropriate remedy when an appellant is entitled to a restricted appeal is to remand the matter for
a new trial on the issue of unliquidated damages. In re Marriage of Williams, 646 S.W.3d 542,
545 (Tex. 2022).
We review the trial court’s interpretation of an unambiguous contract de novo.
URI, Inc. v. Kleberg County, 543 S.W.3d 755, 763 (Tex. 2018). Whether a party may recover
reasonable attorney’s fees is a question of law that we review de novo. Fitzgerald v. Schroeder
Ventures II, LLC, 345 S.W.3d 624, 627 (Tex. App.—San Antonio 2011, no pet.); see Holland
v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94, 95 (Tex. 1999)).
ANALYSIS
It is undisputed that Castilla has met the jurisdictional requirements for
proceeding with a restricted appeal. See Carbajal, 2021 WL 2371357, at *2. The remaining
requirement to prevail on his restricted appeal is for Castilla to show that error is apparent on the
face of the record. Whether he can do so depends on his other issues—whether the Guaranty
Agreement pertains to the Amendment and whether the evidence was legally and factually
insufficient to support the default judgment.
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We first address whether the Guaranty Agreement applies to the Amendment,
thereby making Castilla liable for Dizfruta’s default under that agreement. Based on the plain,
ordinary, and generally accepted meaning of the Amendment’s language, we determine that the
Guaranty applies to the Amendment. See URI, Inc., 543 S.W.3d at 757–58, 763–64 (explaining
principles of contract construction). Paragraph 6 of the Amendment expressly states that the
“Guaranty [Agreement] as described in Exhibit ‘F’ of the original lease will remain in effect and
will be applicable to the new Net Rentable Area of the Leased Premises.” Exhibit “F” of the
original lease contains the Guaranty Agreement Castilla signed. In addition to signing the
original lease and the Guaranty Agreement, Castilla signed the Amendment. Accordingly, we
overrule Castilla’s issue relating to the application of the Guaranty Agreement.
We next consider Castilla’s challenge to the legal and factual sufficiency of the
evidence supporting the default judgment. In reviewing a no-answer default judgment, we deem
the petition’s factual allegations admitted, except for the amount of unliquidated damages. See
Texas Com. Bank, 3 S.W.3d at 516; Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex.
1992). If damages are unliquidated and not proved by an instrument in writing, the court must
hear evidence relating to damages before it may grant a default judgment. Tex. R. Civ. P. 243.
When a plaintiff’s claim is liquidated and proven by an instrument in writing, the plaintiff may
be awarded damages without the necessity of a hearing or the presentation of evidence. Burrows
v. Bowden, 564 S.W.2d 474, 475 (Tex. App.—Corpus Christi–Edinburg 1978, no writ); Tex. R.
Civ. P. 241. A claim is liquidated if the amount of damages caused by the defendant can be
accurately calculated by the court from the factual (as opposed to conclusory) allegations in the
petition and the written instrument sued upon. Freeman v. Leasing Assocs., 503 S.W.2d 406,
408 (Tex. App.—Houston [14th Dist.] 1973, no writ).
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Our task, then, is to determine whether the damages awarded were liquidated or
unliquidated. If they were liquidated, we must ensure the calculation of damages was correct; if
unliquidated, we must review the sufficiency of the evidence presented in support of the
damages awarded. The total damages awarded in this case were based on a document entitled
“Summary of Rents Owed.” This summary showed $125,208.38 in rents owed by Dizfruta for
an unspecified period of time preceding the “Relet Lease rent commencement date”; $16,522.62
for a portion of a commission paid to relet the property; $9,375.00 for “Architectural cost due to
unauthorized modification of space”; $5,775.80 for “City permitting cost due to unauthorized
modification of space”; and “$20,000.00 (estimate)” for “Construction cost due to unauthorized
modification of space.” It also contained two credits in favor of Dizfruta: a credit for $16,081
reflecting the difference “in rents post Relet rent commencement date,” which resulted from the
higher rent paid by the subsequent tenant; and a $9,782.66 credit for the total amount paid for
security deposits under the original lease and the Amendment. In addition, the court awarded
$7,980 for attorney’s fees based on an affidavit and bill from W&C’s attorney.
In this case, both the original lease and the Amendment set the amount of monthly
rent based on a formula that added a varying amount to base rent, which itself varied based on
the date (in the original lease) or the number of months that had elapsed since the
“Commencement Date” (in the Amendment). The record does not reflect the timeframe during
which Dizfruta did not pay its rent, nor does the record supply sufficient information from which
the trial court could have calculated the amount to be added to base rent. Accordingly, the
amount of unpaid rent was unliquidated. The amount claimed for the repair estimate is also
unliquidated. See Sherman Acquisition II LP v. Garcia, 229 S.W.3d 802, 809 (Tex. App.—
Waco 2007, no pet.); Alvarado v. Reif, 783 S.W.2d 303, 305 (Tex. App.—Eastland 1989, no
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writ) (claim for damages based on repair estimate is not liquidated damage). Because the
architectural costs, city permitting costs, and commission for reletting the property cannot be
determined from the original lease, the Amendment, or another written instrument in the record
in conjunction with the pleadings, those damages are likewise unliquidated. See Tex. R. Civ. P.
243. “The reasonableness of attorney’s fees, in the absence of a contract therefor, is a question
of fact and is an unliquidated demand as to which the Court should have heard evidence.” Smith
v. Texas Disc. Co., 408 S.W.2d 804, 807 (Tex. App.—Austin 1966, no writ); see Twin City Fire
Ins. v. Vega-Garcia, 223 S.W.3d 762, 770 (Tex. App.—Dallas 2007, pet. denied). The record
does not contain a fee agreement or other contract from which fees could be determined, so the
attorney’s fees are unliquidated. In sum, all of the damages are unliquidated. Therefore, we
review the record for sufficiency of the evidence supporting these damages. 2
To support its damages claim, W&C attached to its motion for default judgment
the affidavit of the property’s manager, Bradley Kovach. In the affidavit, Kovach averred that he
was making the affidavit based on personal knowledge, related some underlying facts supporting
W&C’s claims, and stated that Dizfruta defaulted on the lease by failing to pay rents and
abandoning the leased premises. He also stated that pursuant to the terms of the lease, Dizfruta
owed payments for costs to remedy unauthorized modifications to the property. The affidavit
further specified:
2 When conducting a legal-sufficiency review, we consider the evidence in the light most favorable to the judgment and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex. 2005). To prevail, an appellant must show that no more than a scintilla of evidence supports a finding on which the opponent had the burden of proof. See Waste Mgmt. of Tex., Inc. v. Texas Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 156– 57 (Tex. 2014); City of Keller, 168 S.W.3d at 826. When conducting a factual-sufficiency review, we consider all the record evidence and set aside the judgment only if the evidence is so weak as to make the order clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
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Plaintiff has been damaged by Defendant DIZFRUTA ATX, LLC’s anticipatory
breach of Lease in the total amount of $151,018.14, which takes into
consideration pro-rated commissions incurred from the relet lease, architectural
costs, city permitting costs, and construction costs incurred due to [Dizfruta’s]
unauthorized modification of the Leased Premises, as set out in the Summary of
Rents Owed which is attached hereto marked as Exhibit “D[.]”
Other exhibits attached to the affidavit included the original lease, the Amendment, the Guaranty
Agreement, an invoice showing the leasing commission for reletting the leased premises, an
invoice for architectural services, copies of demand letters sent to Dizfruta and Castilla that
included an earlier version of the Summary of Rents Owed that showed a damages amount that
did not include city permitting costs. Kovach was the custodian of these records for W&C in his
role as property manager.
“Testimony of the total amount due under a written instrument is legally sufficient
to support an award of that amount in a default judgment proceeding.” Texas Com. Bank,
3 S.W.3d at 517. Although the affidavits are hearsay, “because unobjected-to hearsay is, as a
matter of law, probative evidence, affidavits can be evidence for purposes of an unliquidateddamages hearing pursuant to Rule 243.” Id. at 516. Kovach averred he had personal knowledge
of the facts, described the facts and the losses attributed to Dizfruta’s default, and generally
described the bases for damages, attaching supporting documents for some of the damages. We
conclude that his affidavit was legally and factually sufficient to support the damages award.
To support attorney’s fees, W&C submitted the affidavit of attorney Erin Newton
as well as a billing statement detailing billable hours spent on the case between November 2024
and July 2025, the total for which matches the $7,980 listed in the Summary of Rents Owed.
She testified that she is an attorney familiar with the reasonable and customary attorney’s fees in
Travis County, and, based on her knowledge of the services rendered to W&C, which she
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described, $7,980 was a reasonable fee for work that both she and a more experienced associate
performed on the case. Newton’s affidavit was legally and factually sufficient to support the trial
court’s award of attorney’s fees. We overrule Castilla’s challenge to the sufficiency of
the evidence.
CONCLUSION
Having determined that the Guaranty Agreement extended to the Amendment and
that sufficient evidence supported the default judgment, we conclude that the trial court did not
abuse its discretion in granting a default judgment against Castilla. We affirm the trial
court’s judgment.
Rosa Lopez Theofanis, Justice
Before Chief Justice Byrne, Justices Theofanis and Crump
Affirmed
Filed: June 26, 2026
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