Mechanism 57
Attacking the damages after a post-answer default
Does a defendant who fails to appear at trial admit the damages in Texas?
No. A post-answer default is not an abandonment of the answer or an admission of anything but the allegations the pleading itself establishes. The plaintiff must still prove its damages with competent evidence, and an uncontested prove-up frequently does not build a record that survives a legal-sufficiency review.
By John P. Henry · Stoner v. Thompson, 578 S.W.2d 679 (Tex. 1979) · Reviewed 2026-08-02
The authority
A post-answer 'default' constitutes neither an abandonment of defendant's answer nor an implied confession of any issues thus joined by the defendant's answer. Judgment cannot be entered on the pleadings, but the plaintiff in such a case must offer evidence and prove his case as in a judgment upon a trial.Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979)
Stoner v. Thompson, 578 S.W.2d 679 (Tex. 1979)
When it applies
The client who lost the file, changed counsel, or simply did not show. Also the client who did show, lost, and is looking at a damages number nobody supported — the same sufficiency review applies.
How it is proved up
- Read the reporter’s record of the prove-up before anything else. A short uncontested hearing often contains a witness stating a total and nothing that ties it to a document.
- Separate the categories. Restoration versus diminution in value, direct versus consequential, prejudgment interest — each has its own measure and each has to be supported.
- Attack the fee award on the same record. A total asserted without hours, rates and tasks does not meet the lodestar proof requirements, and fees are frequently the softest number in the judgment.
- Ask for rendition, not remand, where there is no evidence at all. Legally insufficient evidence supports rendition of a take-nothing judgment; factually insufficient evidence gets a new trial.
- Preserve it properly. Legal sufficiency after a bench trial may be raised for the first time on appeal, but the safer course is a motion for new trial that says so.
What defeats it
- A prove-up that was actually done properly, with documents and a witness who ties the numbers to them.
- Liquidated damages proved by written instrument, where the amount follows from the contract.
- A record where the defendant did participate, which changes the posture entirely.
- Waiver — complaints about the form of the judgment that were never raised below.
Where I have used it
Tabers v. Chen · No. 03-26-00151-CV, Court of Appeals for the Third District at Austin. Appellant’s brief filed April 2026 challenging a $185,258.75 damages judgment rendered after an uncontested bench trial — seven issues, six of them asking the court to render a take-nothing judgment, on the legal sufficiency of the damages evidence and of the attorney’s fee award.
Questions
What is a post-answer default judgment in Texas?
A judgment entered when a defendant has filed an answer but fails to appear at trial. It differs from a no-answer default because the answer remains on file and puts the plaintiff's allegations at issue.
Does the plaintiff have to prove damages at a post-answer default?
Yes. Under Stoner v. Thompson the plaintiff must offer evidence and prove its case as in any trial. Judgment cannot be rendered on the pleadings.
What relief does an appellate court give for legally insufficient damages evidence?
Where there is no evidence to support the award, the appellate court renders judgment rather than remanding. Factually insufficient evidence results in a remand for new trial.