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Civil Litigation No. 13-01-621-CV, 5/29/2003. Click here for the full text of this decision FACTS: The appellant, Shoreline Inc., defendant below, appeals from a post-answer default judgment granted in the favor of the appellee, Jeri Hisel, plaintiff in the trial court. HOLDING: Affirmed as reformed. This judgment is not entitled to a presumption of finality because it is a default judgment. As such, it does not have a presumption of finality because it does not result from a conventional trial on the merits. Chase Manhattan Bank N.A. v. Lindsay, 787 S.W.2d 51 (Tex. 1990). A “judgment awarding an unascertainable amount cannot be final.” H. E. Butt Grocery Co. v. Bay, 808 S.W.2d 678 (Tex. App. – Corpus Christi 1991, writ denied). Not specifying the amount of prejudgment interest, however, does not necessarily make a judgment uncertain or indefinite. Ortiz v. Avante Villa at Corpus Christi Inc., 926 S.W.2d 608 (Tex. App. – Corpus Christi 1996, writ denied). When the rate and means of calculating interest can be determined as a matter of law, it is not necessary that the amount be stated in the judgment. Nonetheless, ministerial officers must be able to carry the judgment into execution without ascertainment of additional facts. Stewart v. USA Custom Paint & Body Shop Inc., 870 S.W.2d 18 (Tex. 1994) The accrual date for prejudgment interest on the statutory discrimination claim began 180 days after Shoreline received written notice of the complaint filed with the EEOC. That complaint was filed on Dec. 8, 1997. The Texas Commission on Human Rights has up to 10 days of receipt of complaint to serve a copy of that complaint to the respondent. Although the record does not reflect when appellant received notice of the claim, the court presumes it was received as the 10-day period ended, Dec. 19, 1997. The appellant relies on a supposed conflict between the date prejudgment interest began to accrue under the TCHRA and the date prejudgment interest began to accrue under the negligence action. However, the statutory and common-law entitlement to prejudgment interest accrue identically: after 180 days from the date written notice of claim is given to defendant or suit is filed, whichever is earlier. Notice of the claim that appellee was seeking money is presumed to have been given on Dec. 19, 1997, and interest began to accrue 180 days later. The filing of the action occurred much later, on May 28, 1999. The notice of claim was sufficient to trigger the accrual of interest, regardless of the multiple pleadings appellee chose, because the essence of her complaint is her firing. Because prejudgment interest began accruing on the same day for both causes of action, the judgment is not ambiguous and is final. The record does not reveal any delays in the trial so as to give rise to discretion of the trial court to determine the accrual date. Similarly, there is no evidence of settlement offers so as to implicate Texas Finance Code �304.105. The appellant asserts that the trial court erred in awarding damages because there is no evidence of the number of employees of Shoreline. The TCHRA sets the maximum damages allowable, compensatory and punitive, dependent on the number of employees of the defendant. Texas Labor Code �21.2585(d). The damages awarded appellee was $280,000. An award of this amount would require the defendant to employ at least 500 persons. However, no such damage cap was pleaded by appellant. Where maximum damages are provided in statutes in Texas, and a defendant wants to rely on the cap, it is considered a defense that must be plead and proved. The court holds it was incumbent on the appellant, if seeking to avail itself of the protection of the damage cap, to plead and prove the defense. Neither pleading nor proof are present in this record. The appellant’s fourth issue is that the evidence is insufficient, factually and legally, to support the award of compensatory and punitive damages. Punitive damages may be awarded if the employer acted with malice or reckless indifference to the state-protected rights of the employee. Texas Labor Code �21.2585. However, more than mere discrimination is required to authorize punitive damages. Kolstad v. Am. Dental Assoc., 527 U.S.526 (1999). The court concludes there is no evidence of malice or reckless indifference to justify the imposition of punitive damages. However, the court concludes there is sufficient evidence to sustain the other awards of damages. OPINION: Dorsey, J.; Valdez, C.J., Rodriguez and Dorsey, JJ.

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