Olive Tree Apartments and Edgar K. Markwardt v. Maria C. Trevino ( 2010 )

i i i i i i
MEMORANDUM OPINION
No. 04-09-00740-CV
OLIVE TREE APARTMENTS and Edgar Markwardt,
Appellants
v.
Maria TREVINO,
Appellee
From County Court at Law No. 5, Bexar County, Texas
Trial Court No. 317210
Honorable Irene Rios, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Marialyn Barnard, Justice
Delivered and Filed: May 5, 2010
REVERSED AND REMANDED
This is a restricted appeal from a default judgment rendered against appellants. Because error
appears on the face of the record, we reverse the trial court’s judgment and remand for further
proceedings.
DISCUSSION
In appellee’s Original Petition, she alleged that while she was in the employ of Olive Tree
Apartments, the apartment owner and her supervisor, Edward Markwardt, “constantly made
04-09-00740-CV
unwelcome sexual advances, comments, inappropriate touching and harassment.” She alleged
claims for sexual harassment and retaliation in violation of the Texas Labor Code, and for assault,
and she alleged actual damages in the form of mental anguish, personal injuries, and emotional
distress, both past and future. During the hearing on her motion for default judgment, appellee’s
counsel informed the trial court that appellee also sought exemplary damages, and, because such had
not been pled for in the Original Petition, counsel asked for and received the court’s permission to
read into the record a “trial amendment,” in which appellee asked for an award of “a reasonable sum
of exemplary damages or punitive damages in addition to actual damages.” The trial court awarded
actual damages in the amount of $99,500 and exemplary damages in the amount of $25,000.
On appeal, appellants do not dispute they were served with appellee’s Original Petition; nor
do they dispute that they neither answered nor appeared. However, appellants assert error appears
on the face of the record because the trial court improperly rendered a default judgment on an
amended pleading that had not been served. See Grayson v. Grayson, 103 S.W.3d 559, 561 (Tex.
App.—San Antonio 2003, no pet.) (only restriction on scope of restricted appeal review is that error
must appear on face of the record).
Appellee argues that a petition is required only to give fair notice of a claim, and a claim for
unliquidated damages need only state that the damages sought exceed the minimal jurisdictional
limits of the court. According to appellee, because the Labor Code provides for an award of punitive
damages under the circumstances alleged in her Original Petition and because exemplary damages
“flow naturally” from assault, an opposing attorney of reasonable competence should have been able
to ascertain from the Original Petition that exemplary damages were a basic issue in dispute.
-2-
04-09-00740-CV
Therefore, appellee argues service of an amended petition was not necessary. We disagree with
appellee’s argument.
“[A] nonanswering defendant must be served with a more onerous amended petition in order
for a default judgment to stand, [and] Rule 21a service satisfies that requirement.” In re E.A., 287
S.W.3d 1, 4 (Tex. 2009); see also TEX . R. CIV . P. 21a (providing several methods of delivery,
including certified or registered mail, as appropriate for “[e]very notice required by these rules, and
every pleading, plea, motion, or other form of request required to be served under Rule 21, other than
the citation to be served upon the filing of a cause of action and except as otherwise expressly
provided in these rules.”). A default judgment taken without proper service is void. See In re
Discount Rental, Inc., 216 S.W.3d 831, 832 (Tex. 2007) (per curiam). Because appellee’s Original
Petition requested only actual damages and her amended petition sought a more onerous judgment
in the form of exemplary damages in addition to actual damages, appellants were entitled to service
of the amended petition pursuant to Rule 21a.
CONCLUSION
It is apparent from the face of the record that the trial court improperly rendered a default
judgment on an amended petition that sought more onerous damages, but which was not properly
served on appellants. Therefore, the default judgment is void. Accordingly, we reverse the default
judgment and remand for further proceedings consistent with this opinion.
Sandee Bryan Marion, Justice
-3-