Chris Lingle v. Sage Architecture Inc.

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION

No. 04-24-00539-CV

Chris LINGLE,
Appellant

v.

SAGE ARCHITECTURE, INC.,
Appellee

From the 438th Judicial District Court, Bexar County, Texas
Trial Court No. 2022-CI-18188
Honorable Laura Salinas, Judge Presiding

Opinion by: Irene Rios, Justice

Sitting: Irene Rios, Justice
H. Todd McCray, Justice
Velia J. Meza, Justice

Delivered and Filed: October 22, 2025

AFFIRMED

In one issue, appellant Chris Lingle (“Lingle”) appeals the default judgment rendered

against him claiming the trial court failed to modify its final judgment to conform to the pleadings

after appellee Sage Architecture, Inc. (“Sage”) nonsuited the remaining defendants Sarah Lingle

(“Sarah”) and her company Aura Consulting LLP (“Aura”). Specifically, Lingle argues that

because Sage did not sue him individually for committing a tort when it sued him for civil

conspiracy, alleging he conspired with Sarah and Aura in misappropriating funds from Sage,
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Sage’s subsequent nonsuit of Sarah and Aura required the trial court to modify the default

judgment and render a take nothing judgment. We disagree and affirm the trial court’s final

judgment awarding Sage $418,816.72 in damages as reflected in the trial court’s default judgment

against Lingle.

BACKGROUND

Sarah served as Sage’s office manager/bookkeeper from November 2017 through the

summer of 2022. In February 2019, Sarah allegedly incorporated and organized a limited liability

company, Aura, in which Sarah was its sole member and owner. Sarah married Lingle in October

2020.

While serving as Sage’s bookkeeper, Sarah had access to Sage’s bank, debit, and credit

card accounts. Soon after Sarah left Sage’s employ, Sage discovered Sarah misappropriated funds

from Sage benefiting herself as well as her marital estate. Sage alleged Sarah stole funds by using

its debit card to pay for various things, including her mortgage, car loan notes, personal credit card

accounts, and for numerous goods and services. Sage also alleged Sarah forged several checks by

issuing duplicate payroll checks to herself, paying Aura for consulting work, and issuing checks

to other Sage employees and then endorsing them to herself. Sage discovered a total of

$1,675,266.88 in unauthorized charges that Sage paid on Sarah’s behalf. Sage also contended

Lingle knew about and was complicit in Sarah’s misappropriation of funds and benefited from

Sarah’s theft.

On September 16, 2022, Sage filed its original petition against Sarah, Lingle, and Aura.

Sage alleged Sarah, individually and on behalf of Aura, committed violations of the Texas Theft

Liability Act against Sage for her and Lingle’s benefit. Sage additionally asserted Sarah committed

fraud by non-disclosure and breached her fiduciary duty to Sage. With respect to Lingle, Sage

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alleged Sarah conspired with both Lingle and Aura to steal at least $1,675,266.88 from Sage, and

Lingle and Aura participated in receiving and spending Sage’s stolen funds and covering up

Sarah’s conduct. Sage attached affidavits from its current bookkeeper, one of its owners and

principals, and one of the attorneys representing Sage in the lawsuit, all in support of Sage’s

allegations in its petition.

After obtaining the trial court’s permission for alternative service under rule 106 of the

Texas Rules of Civil Procedure, Sage served Sarah, Lingle, and Aura. By order granting Sage an

extension of a former temporary injunction and setting the case for trial on the merits, the trial

court found service was effectuated on Sarah, Lingle, and Aura by alternative service on September

23, 2022. The trial court also found that on September 26, 2022, returns of service for all

defendants were filed. Sage filed its first amended petition on November 8, 2022, and its second

amended petition on November 9, 2022.

Thereafter, on November 10, 2022, Sage moved for entry of a default judgment against

Lingle. Sage contended in its motion for default judgment that Lingle conspired with Sarah to

misappropriate funds from Sage in the amount of $1,675,266.88. Based on Lingle’s involvement,

Sage requested the trial court sign a default judgment against Lingle for $418, 816.72. The trial

court rendered the requested default judgment against Lingle on November 10, 2022, concluding

Sage’s material allegations were deemed admitted by Lingle and awarding Sage damages in the

amount of $418,816.72.

Over a year and half later, Lingle and Sarah filed their original answers. In April and May

2024, Lingle filed a motion and a supplement to his motion for new trial and to set aside the

interlocutory default judgment. Lingle also filed an objection to proper notice and service of Sage’s

second amended petition, on which the trial court granted Sage’s request for a default judgment

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against him. On May 7, 2024, the trial court overruled Lingle’s objection to proper service and

notice of Sage’s second amended petition and denied Lingle’s motion for new trial and to set aside

the default judgment.

On May 20, 2024, Sage filed its notice of nonsuit without prejudice against Sarah and Aura.

In response, on June 7, 2024, Lingle filed a motion to enter final judgment, modify the judgment

to conform with Sage’s pleadings, and for a new trial. On July 23, 2024, and prior to ruling on

Lingle’s motion, the trial court granted Sage’s voluntary nonsuit of Sarah and Aura without

prejudice. Soon thereafter, the trial court set forth in its August 2, 2024 order the applicable dates

concerning: the default judgment against Lingle, the trial court’s May 7, 2024 denial of Lingle’s

objection to notice and service and motion for new trial, and the trial court’s order granting Sage’s

nonsuit of Sarah and Aura. The trial court also denied Lingle’s motion to modify the judgment to

conform to Sage’s pleadings and motion for new trial.

Lingle filed his notice of appeal on August 19, 2024, and this appeal ensued.

LINGLE’S APPELLATE ARGUMENT

Lingle contends that civil conspiracy is a derivative claim, and thus when Sage nonsuited

Sarah and Aura, it dismissed its underlying tort claims. Consequently, Lingle contends the

interlocutory default judgment is not an enforceable final judgment because his liability for

engaging in civil conspiracy is no longer supported by an underlying tort. Relying on Texas Rules

of Civil Procedure 301, Lingle argues the trial court erred by not modifying the default judgment

to a take nothing judgment because the default judgment did not conform to Sage’s pleadings once

it allegedly dismissed its tort claims by nonsuiting Sarah and Aura. Lingle argues Sage’s pleadings

then only asserted a civil conspiracy derivative claim against him. See TEX. R. CIV. P. 301 (“The

judgment of the court shall conform to the pleadings, the nature of the case proved and the verdict,

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if any, and shall be so framed as to give the party all the relief to which he may be entitled either

in law or equity.”).

STANDARD OF REVIEW

The trial court denied both Lingle’s motion to modify the judgment to conform to Sage’s

pleadings and his motion for new trial. Lingle’s appellate brief focuses on the trial court’s alleged

failure to modify the default judgment against Lingle. Nonetheless, whether reviewing a trial

court’s ruling on a motion to modify the judgment or motion for new trial, we review those rulings

for an abuse of discretion. See Wagner v. Edlund, 229 S.W.3d 870, 879 (Tex. App.—Dallas 2007,

pet. denied) (concluding the trial court did not abuse its discretion in denying motion to modify

judgment or motion for new trial); see also In re Marriage of Guerra, No. 13-21-00377-CV, 2022

WL 16842086, at *9 (Tex. App.—Corpus Christi–Edinburg Nov. 10, 2022, pet. denied) (“We

review a trial court’s decision to grant or deny a post-judgment motion that seeks a substantive

change in the existing judgment for an abuse of discretion.”). Thus, we employ an abuse of

discretion standard to determine whether the trial court erred in not modifying the default

judgment.

JUDGMENT CONFORMING TO PLEADINGS

A court’s jurisdiction to render judgment is invoked by the pleadings, and a judgment

unsupported by pleadings is void. See Maswoswe v. Nelson, 327 S.W.3d 889, 893–94 (Tex. App.—

Beaumont 2010, no pet.) (citing In re S.A.A., 279 S.W.3d 853, 856 (Tex. App.—Dallas 2009, no

pet.)); see also Lynch v. Lynch, 540 S.W.3d 107, 135 (Tex. App.—Houston [1st Dist.] 2017, pet.

denied). Therefore, a trial court’s judgment must conform to the pleadings. See TEX. R. CIV. P.

301; see, e.g., Mapco, Inc. v. Carter, 817 S.W.2d 686, 688 (Tex. 1991); Cunningham v. Parkdale

Bank, 660 S.W.2d 810, 813 (Tex. 1983). “This rule is a specific application of the more general

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principle that a party may not be granted relief in the absence of pleadings to support that relief,

unless the request for relief is tried by consent—a situation that cannot occur in the context of a

default judgment.” In re Marriage of Day, 497 S.W.3d 87, 90 (Tex. App.—Houston [14th Dist.]

2016, pet. denied) (citing Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979)).

A. Default Judgments

“[O]nce a default judgment is taken, all factual allegations contained in the petition, except

the amount of damages, are deemed admitted.” Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669,

671 (Tex. 2008) (citing Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992)); see

also Paradigm Oil, Inc. v. Retamco Operating, Inc., 372 S.W.3d 177, 183 (Tex. 2012) (“[T]he

non-answering party in a no-answer default judgment is said to have admitted both the truth of

facts set out in the petition and the defendant’s liability on any cause of action properly alleged by

those facts.”). Having failed to timely answer and appear in this suit, Lingle is deemed to have

admitted the truth of the facts set out in Sage’s petition as well as his liability on all causes of

action properly alleged in Sage’s petition. See Paradigm Oil, 372 S.W.3d at 183.

B. Civil Conspiracy

Civil conspiracy is a derivative tort, “meaning it depends on some underlying tort or other

illegal act.” Agar Corp., Inc., v. Electro Circuits Int’l, LLC, 580 S.W.3d 136, 140–41 (Tex. 2019).

A derivative tort like civil conspiracy is “connected to the underlying tort and survives or fails

alongside it.” Id. at 141. “Civil conspiracy depends entirely on the injury caused by the underlying

tort; the injury is the damage from the underlying wrong, not the conspiracy itself.” Id. Thus, an

underlying tort must be alleged to support an allegation of civil conspiracy. See id.

While “civil conspiracy is not a stand-alone tort[,]” the tortfeasor does not have to be sued

in the same suit with the conspirators.” Klinek v. LuxeYard, Inc., 596 S.W.3d 437, 447 (Tex.

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App.—Houston [14th Dist.] 2020, pet. denied). Rather, a conspirator may be held liable for civil

conspiracy even when the conspirator is the only defendant in the lawsuit. See id. at 447–48. In an

analogous case to the case at bar, a sister court of appeals affirmed a judgment in favor of an

employer who sued an employee’s widow for claims that included conspiring in the employee’s

theft from his employer when he breached his fiduciary duty to his employer. See Paschal v. Great

W. Drilling, Ltd., 215 S.W.3d 437, 442–43 (Tex. App.—Eastland 2006, pet. denied). The widow

argued on appeal that she should not be assessed damages for her late husband’s breach of fiduciary

duty because the damages were “based upon the conduct of a non-party.” See id. at 451. The

Paschal court disagreed, stating the damage question was predicated on a finding that the widow

participated in a conspiracy that damaged the employer, and “[o]nce a conspiracy is proven, each

conspirator is responsible for all acts done by any of the conspirators in furtherance of the

conspiracy.” Id.

Moreover, “a party may prosecute consecutive suits against different defendants for a

single indivisible injury. This is true regardless of whether the various defendants are joint

tortfeasors.” Klinek, 596 S.W.3d at 447. “The plaintiff may even bring the second suit after the

first case settles.” Id. at 448 (citing First Title Co. of Waco v. Garrett, 860 S.W.2d 74, 76, 79 (Tex.

1993)). Therefore, Sage’s nonsuit of Sarah and Aura did not foreclose its ability to seek damages

from Lingle, who Sage alleged conspired with both Sarah and Aura to steal from Sage and

participated in receiving and spending Sage’s stolen funds and covering up Sarah’s conduct.

Because Lingle defaulted and thereby admitted both the truth of the facts set out in Sage’s petition

and his liability on any cause of action properly alleged by those facts, Lingle, as one of the

conspirators, can be held liable in furtherance of the conspiracy for all acts done by Sarah. See

Paradigm Oil, 372 S.W.3d at 183; see also Klinek, 596 S.W.3d at 447–48 (holding conspirator

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liable for civil conspiracy despite no finding of the tortfeasor’s liability because the tortfeasor

settled his case in a prior lawsuit); Paschal, 215 S.W.3d at 451 (holding widow liable for

conspiring with her late husband, who the jury found breached his fiduciary duty by stealing money

from his employer, although the employer did not sue the deceased employee or his estate).

DAMAGES

Within Lingle’s argument that the trial court erred by not modifying the default judgment

to conform to the pleadings because Sage nonsuited its claims against Sarah and Aura, Lingle

contends the damage award of $418,816.72 should have been modified as a take nothing judgment.

To the extent Lingle challenges the damages awarded, we address it separately below.

A. Applicable Law

As previously stated, “[i]t is well settled that once a default judgment is taken against a

non-answering defendant on an unliquidated claim, all allegations of fact set forth in the petition

are deemed admitted, except the amount of damages.” Tex. Commerce Bank, Nat’l Ass’n v. New,

3 S.W.3d 515, 516 (Tex. 1999) (emphasis added). With one exception not applicable here, Rule

243 of the Texas Rules of Civil Procedure requires the trial court to receive “evidence as to

damages” before “render[ing] a judgment therefor.” TEX. R. CIV. P. 243. Although a plaintiff must

produce evidence of unliquidated damages before a trial court may enter a default judgment on

those damages, such evidence may be produced in the form of affidavits as long as the amount of

unliquidated damages can be proved with reasonable certainty. See New, 3 S.W.3d at 516–18; Holt

Atherton, 835 S.W.2d at 84; see also TEX. R. CIV. P. 243. For liquidated damages, however, the

trial court can render a default judgment if it can verify the damages by referring to the allegations

in the petition, and they are “proved by an instrument in writing.” TEX. R. CIV. P. 241; see Whitaker

v. Rose, 218 S.W.3d 216, 220 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

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Before we can determine whether there is sufficient evidence to support the damages

awarded in this case, we must first determine whether the damages are liquidated or unliquidated.

“A claim is liquidated if the amount of damages may be accurately calculated by the trial court

from the factual, as opposed to the conclusory, allegations in plaintiff’s petition and the instrument

in writing.” Aavid Thermal Tech. of Tex. v. Irving Ind. Sch. Dist., 68 S.W.3d 707, 711 (Tex. App.—

Dallas 2001, no pet.). “If the instrument in writing is attached to the plaintiff’s petition and if the

amount of damages can be calculated from the allegation in the petition, judgment should be

entered for that amount against the defaulting defendant.” First Nat’l Bank of Irving v. Shockley,

663 S.W.2d 685, 688 (Tex. App.—Corpus Christi–Edinburg 1983, no writ); see also Novosad v.

Cunningham, 38 S.W.3d 767, 773 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (holding suit

to recover amount due for professional services was a liquidated claim proved by written

instruments where plaintiff attached original invoices to verified petition and motion for default

judgment).

In contrast, “unliquidated damages are not susceptible to exact calculation and involve a

range of possible answers.” Paradigm Oil, 372 S.W.3d at 186. “For this reason, a defaulting

defendant admits facts establishing liability but not any claimed amount of unliquidated damages.”

Id. (citing Holt Atherton, 835 S.W.2d at 83).

B. Analysis

Here, Sage attached to its petition and its motion for default judgment an affidavit from its

current bookkeeper who discovered the misappropriation of funds. In her affidavit, she attested to

damages in the amount of $1,675,266.88. Sage also attached the affidavit of James D. Rahe, one

of its owners and principals, to its petition and included Sage’s bank records from August 2020 to

August 2022, documents provided to its bank indicating which forged checks Sage reported to the

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police, and copies of the canceled checks, indicating specific, unauthorized transactions made by

Sarah. Sage did not attach additional written instruments, such as bank records or canceled checks,

to support the alleged misappropriated funds from January 2018 through July 2020, accounted for

in Sage’s bookkeeper’s affidavit. Absent additional written instruments to prove the accrued

damages from January 2018 through July 2020, the trial court could not accurately calculate those

damages, and instead relied on conclusory allegations in Sage’s petition, the affidavits attached to

Sage’s petition, and Sage’s motion for default judgment and its attachments. See Holt Atherton,

835 S.W.2d at 84 (“The amount of [unliquidated damages] must be shown with competent

evidence with reasonable certainty.”); see also TEX. R. APP. P. 243 (“If the cause of action is

unliquidated or be not proved by an instrument in writing, the court shall hear evidence as to

damages and shall render judgment therefor[.]”).

Because the damages attributed to Sarah’s misappropriation of funds from January 2018

through July 2020 cannot be accurately calculated from the factual, as opposed to the conclusory,

allegations in Sage’s petition and its attached affidavits, or from Sage’s motion for default

judgment and its attached affidavit, those damages are unliquidated. The evidence does not support

the amount of misappropriated funds totaled $1,675,266.88.

Nevertheless, the default judgment awards Sage $418,816.72 in damages, not

$1,675,266.88. Sage’s petition, the affidavits attached to Sage’s petition, and Sage’s motion for

default judgment and its attachments support damages exceeding the amount awarded to Sage by

the trial court. Thus, damages in the amount of $418,816.72 is a liquidated claim for which Lingle

is liable for the entire amount. See Aavid Thermal, 68 S.W.3d at 711; see also Agar Corp., 580

S.W.3d at 140 (“[C]ivil conspiracy is a vicarious liability theory that imparts joint-and-several

liability to a co-conspirator who may not be liable for the underlying tort.”).

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Therefore, the trial court did not err in denying Lingle’s motion to modify the default

judgment to conform to Sage’s pleadings, including the trial court’s award of $418,816.72 in

damages to Sage.

We overrule Lingle’s appellate issue.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s final default judgment.

Irene Rios, Justice

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