AAMCO Transmissions, Inc. v. James A. Bova , 484 S.W.3d 520 ( 2016 )

Opinion issued January 14, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00974-CV
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AAMCO TRANSMISSIONS, INC., Appellant
V.
JAMES A. BOVA, Appellee
On Appeal from the 113th District Court
Harris County, Texas
Trial Court Case No. 2013-77066
OPINION
In this restricted appeal, AAMCO Transmissions, Inc. contends that it is
apparent from the face of the record that the trial court erred by entering a no-answer
default judgment. The ostensible error consists of the fact that default judgment rests
on the allegations of a petition that was amended to seek greater relief after the trial
court orally rendered a default judgment. Finding no error, we affirm the judgment.
Background
James Bova filed a petition against AAMCO and two of its employees
alleging causes of action for intentional infliction of emotional distress, defamation,
and negligence. He also alleged gross negligence and sought a maximum recovery
of $2,000,000.
The original petition was served on AAMCO. AAMCO did not timely answer
or otherwise make an appearance in the lawsuit, and Bova moved for entry of a
default judgment against it. The court held an oral hearing on Bova’s motion. After
hearing testimony from Bova about his damages, the court indicated that it would
render judgment against AAMCO and requested that Bova submit a proposed
judgment for its consideration:
The Court: . . . In this interlocutory judgment, I will find
actual damages in the amount of $210,000 and
an additional punitive damage amount of
$200,000. Okay?
[Bova’s counsel]: Fair enough, Your Honor.
The Court: If you will, prepare and send to me a draft
judgment making sure that it is an interlocutory
judgment at this time, unless you decide you
want to—
[Bova’s counsel]: —let these two guys go.
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The Court: —do whatever you may want to do.
Bova subsequently filed an amended petition that omitted the two employee
defendants. But he otherwise alleged the same causes of action and theories of
recovery against AAMCO and sought the same maximum amount of recovery. At
the same time Bova also filed a proposed final judgment against AAMCO,
conforming to the trial court’s instructions at the default-judgment hearing.
The trial court signed and entered a final judgment against AAMCO in which
it awarded Bova $210,000 in actual damages and $200,000 in punitive damages.
AAMCO timely brought this restricted appeal.
Analysis
To prevail in this restricted appeal, AAMCO must show that it filed its notice
of appeal within six months of the date when the judgment was signed, was a party
to the underlying suit, and did not participate in the default-judgment hearing or
timely file postjudgment motions or request findings of fact or conclusions of law.
Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004). It also must show
that error is apparent from the face of the record. Id. Only this last element—whether
error is apparent from the face of the record—is at issue. The record consists of all
of the papers on file in the appeal. Norman Commc’ns v. Texas Eastman Co., 955
S.W.2d 269, 270 (Tex. 1997) (per curiam).
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AAMCO argues it is apparent from the face of the record that the trial court
erred by entering a no-answer default judgment for three reasons. AAMCO first
contends that a defendant cannot be deemed to have admitted the allegations made
in an unserved pleading, and that any default judgment rendered on the basis of an
unserved pleading is therefore void. It contends in the alternative that, even if an
unserved pleading may sometimes support a default judgment, this particular
judgment is void because the unserved amended petition exposed it to greater
liability than the original pleading that was served. Finally, AAMCO contends that
the judgment is void because it was entered before the deadline to answer the
unserved amended petition had expired.
I. Effect of amended petition
AAMCO contends that the default judgment was invalidated by the filing of
an unserved amended petition.
A. Effect of failing to serve live petition
In its first issue, AAMCO contends that “a defendant must be served the live
petition upon which the default judgment is based,” relying upon Harris v. Shoults,
877 S.W.2d 854 (Tex. App.—Fort Worth 1994, no writ), and Caprock Construction
Co. v. Guaranteed Floorcovering, Inc., 950 S.W.2d 203 (Tex. App.—Dallas 1997,
no writ). Because AAMCO was served the original petition but was not served the
amended petition, it reasons that the default judgment is invalid. However, a more
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recent authority from the Supreme Court of Texas suggests the rule requiring service
of the live petition does not categorically apply as suggested by AAMCO. In Fidelity
& Guaranty Insurance Co. v. Drewery Construction Co., 186 S.W.3d 571 (Tex.
2006) (per curiam), the Court observed in the context of a bill of review: “Service
of an amended petition on a party that has not appeared is necessary only when a
plaintiff ‘seeks a more onerous judgment than prayed for in the original pleading.’”
Fidelity, 186 S.W.3d at 574 (quoting Weaver v. Hartford Accident & Indem. Co.,
570 S.W.2d 367, 370 (Tex. 1978)); see also Onwukwe v. Ike, 137 S.W.3d 159, 165
(Tex. App.—Houston [1st Dist.] 2004, no pet.).
Notably, the outcomes in both Harris and Caprock are consistent with Fidelity
because the default judgments awarded in both of those cases came after the plaintiff
had amended pleadings to seek a judgment more onerous than what was sought in
the pleading that had been actually served. In Harris, the plaintiff filed a petition
seeking a specific amount of property damages. Harris, 877 S.W.2d at 855. After
the defendant failed to answer or appear, the plaintiff amended his petition to seek
unspecified damages. Id. He then introduced proof in support of both property and
personal-injury damages at the default-judgment hearing, and the trial court awarded
the specific amount of property damages previously pleaded as well as more than
six times that amount for personal injuries. Id. Similarly in Caprock, the unserved
amended petition increased the defendant’s exposure by adding a new plaintiff, see
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Caprock, 950 S.W.2d at 205, and other decisions have characterized Caprock as a
case in which the amended petition sought a more onerous judgment. See, e.g., State
v. C.J.F., 183 S.W.3d 841, 851–52 (Tex. App.—Houston [1st Dist.] 2005, pet.
denied).
Because a plaintiff is not required to serve an amended petition on a defendant
that has not answered unless it seeks a more onerous judgment than the one requested
in the superseded pleading, we overrule AAMCO’s first issue. See Fidelity, 186
S.W.3d at 574; Onwukwe, 137 S.W.3d at 165.
B. More onerous judgment
In its second issue, AAMCO argues that service of the amended petition was
required in this case because it sought a more onerous judgment than the original
petition sought. A judgment is more onerous if it exposes the defendant to increased
liability. Bennett v. Wood Cty., 200 S.W.3d 239, 241 (Tex. App.—Tyler 2006, no
pet.). Increases in potential liability may result, for example, from the addition of
new causes of action, inclusion of new elements of damages, or an increase in the
amount of damages previously pleaded. See, e.g., Baten Erection Corp. v. Iron
Workers’ Pension Tr. Fund, 608 S.W.2d 262, 263–64 (Tex. App.—Houston [1st
Dist.] 1980, no writ).
AAMCO maintains that Bova’s amendment sought a more onerous judgment
in two ways. First, AAMCO contends that Bova’s amendment sought increased
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damages. Second, it contends that, by omitting the two employee defendants from
his amended pleading, Bova necessarily exposed AAMCO to increased liability.
Neither contention has merit.
1. Allegation of increased damages
In his original petition, Bova sought both actual and punitive damages and
pleaded a maximum amount of recovery of $2,000,000. AAMCO contends that
Bova subsequently testified he sought a lesser amount of damages during the hearing
on his motion for default judgment. It relies on the following exchange during
Bova’s testimony:
[Bova’s counsel]: Are you asking this court for a million dollars for
the damages that you’ve suffered?
[Bova]: Yes.
AAMCO further contends that, because the amended petition Bova filed after the
hearing stated a maximum amount of recovery of $2,000,000, Bova’s amended
pleading sought a more onerous judgment.
But the question and answer upon which AAMCO relies, as well as the
surrounding context, show that Bova and his counsel were discussing actual
damages alone, rather than the total recovery sought. Shortly before the one-million-
dollar question, counsel asked Bova what economic damages he had sustained. And
the question at issue inquired whether Bova sought “a million dollars” for the
damages he suffered. Punitive damages are awarded primarily to punish and deter,
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not to compensate a plaintiff for the losses he has suffered. Fairfield Ins. Co. v.
Stephens Martin Paving, LP, 246 S.W.3d 653, 666 (Tex. 2008). Thus, considered in
context, counsel’s inquiry as to whether Bova sought one million dollars for the
damages he “suffered” cannot be construed to also encompass punitive damages.
Bova’s testimony, therefore, does not contradict or amend the larger maximum
amount of recovery stated in each of his petitions.
The face of the record refutes AAMCO’s contention that Bova sought
increased damages in his amended petition. The rule requiring service of an amended
petition that seeks a more onerous judgment than the pleading it replaces requires a
comparison of the superseded pleading with its amended version. See Fidelity, 186
S.W.3d at 574. In this case, the record shows that Bova stated a maximum recovery
of $2,000,000 in both his original and amended petitions.
2. Effect of nonsuiting individual defendants
AAMCO also argues that even if Bova sought only a small recovery from the
employee defendants in his original petition, their absence from the amended one
necessarily increased its potential liability because it consequently bore all liability
for damages as the sole remaining defendant.
In both his original and amended petitions, Bova sought a maximum recovery
of $2,000,000. In the original petition, he sought these damages from AAMCO and
two of its employees. In his amended one, he sought to recover from AAMCO alone.
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As authority for its argument that nonsuiting two individual defendants meant
the amended petition sought a more onerous judgment, AAMCO relies on a
definition of “onerous” from Black’s Law Dictionary and Bennett v. Wood County,
200 S.W.3d 239 (Tex. App.—Tyler 2006, no pet.). The dictionary definition on
which AAMCO relies defines “onerous” as “excessively burdensome or
troublesome; causing hardship.” BLACK’S LAW DICTIONARY 1122 (8th ed. 2004).
Bennett characterizes a “more onerous judgment” as “anything that exposes
defendant to additional liability.” Bennett, 200 S.W.3d at 240–41.
We disagree with AAMCO’s argument that the nonsuit of two potentially
jointly liable defendants makes an amended petition’s prayer for relief more onerous.
When a tort claimant alleges that multiple defendants caused his injuries by
committing various torts, each defendant potentially is exposed to the maximum
amount of liability sought by the plaintiff under our system of proportionate
responsibility because the factfinder may find the others are free of responsibility.
TEX. CIV. PRAC. & REM. CODE § 33.003(a). Accordingly, in tort suits, the omission
of one or more defendants from an amended petition does not necessarily increase
the exposure of the remaining defendants even when the maximum recovery sought
remains the same. The remaining defendants were exposed to that amount of liability
all along. Id. In addition, given that the remaining defendants may designate the
newly omitted defendants as responsible third parties and have the trier of fact assess
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their proportionate responsibility, any remaining defendant is not deprived of the
opportunity to reduce its share of damages by placing the blame on these omitted
parties. Id. §§ 33.003–.004, 33.012(a). In short, in a typical tort suit, the omission of
one or more defendants from an amended petition standing alone does not alter the
maximum potential exposure of the remaining ones.
Even though AAMCO’s alleged vicarious liability for its employees’ conduct
could have rendered the proportionate-responsibility statute inapplicable to Bova’s
original petition, it would remain the case that Bova’s amended petition omitting the
employee defendants did not seek to impose a more onerous judgment on AAMCO.
The reason that it is improper to allocate responsibility between an employer and its
employees when vicarious liability is at issue is that vicarious liability is joint and
several. See, e.g., Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369, 375
(Tex. 1984); Pierre v. Swearingen, 331 S.W.3d 150, 154–55 (Tex. App.—Dallas
2011, no pet.). In other words, if the employee defendants named in Bova’s original
petition were acting within the scope of their employment as alleged, AAMCO
would have been liable for the entire amount of any actual damages awarded.
Therefore, the omission of these defendants from the amended petition could not
expose AAMCO to greater liability for actual damages even if the proportionate-
responsibility statute was inapplicable to the claims made by AAMCO in its original
petition as a result of the employer-employee relationship. See McKernan v.
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Riverside Nat’l Bank, N.A., 858 S.W.2d 613, 615 (Tex. App.—Fort Worth 1993, no
writ).
Bova also pleaded gross negligence and requested exemplary or punitive
damages in both his original and amended petitions. Unlike liability for actual
damages, liability for punitive damages is never joint and several, including when
an employer is vicariously liable for its employees’ torts. TEX. CIV. PRAC. & REM.
CODE §§ 33.002(c)(2), 41.006; see also Computek Comput. & Office Supplies, Inc.,
v. Walton, 156 S.W.3d 217, 223–24 (Tex. App.—Dallas 2005, no pet.) (rejecting
contention that Section 41.006 permitted an exception for closely related defendants,
like a corporation and its president). So in any suit for damages involving multiple
defendants, an award of punitive damages must be specific to a given defendant, and
one defendant bears no responsibility for a punitive-damages award made against
another. TEX. CIV. PRAC. & REM. CODE §§ 41.002(a), 41.006. Therefore, as with
actual damages, the omission of the employee defendants from Bova’s amended
petition did not expose AAMCO to greater liability for punitive damages, because
the employees could not have borne any responsibility for punitive damages
assessed against AAMCO or vice versa.
We conclude Bova did not seek a more onerous judgment by way of his
amended petition because the amendment did not expose AAMCO to increased
liability. This remains true whether his tort claims were subject to the proportionate-
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responsibility statute or fell outside of its scope due to the employer-employee
relationship. It likewise remains true with respect to both actual and exemplary or
punitive damages. Accordingly, we overrule AAMCO’s second issue.
II. Deadline to answer
Finally, in its third issue AAMCO contends the trial court erred by entering
judgment before its answer to Bova’s amended petition was due. The record
indicates that the trial court signed and entered judgment 10 days after Bova filed
his amended petition. Relying on Conaway v. Lopez, 880 S.W.2d 448 (Tex. App.—
Austin 1994, writ ref’d), AAMCO argues that this renders the judgment void
because its deadline to answer had not yet passed.
Conaway, however, is readily distinguishable. In Conaway, the trial court
entered a default judgment against the defendant before the deadline to answer the
original petition had passed. Conaway, 880 S.W.2d at 449–50. Thus, the defendant
in Conaway was deprived of the opportunity to answer the suit before a judgment
was entered. Id. In contrast, the default judgment in this case was entered more than
four months after AAMCO was served with the original petition and citation.
AAMCO had the opportunity to answer, but it failed to do so. In short, Conaway
does not stand for the proposition that default judgments are void if entered before
the deadline to answer a subsequent unserved amended pleading, and AAMCO has
not cited any authority that does stand for this proposition. See id.
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Moreover, the application of Conaway on these facts would be inconsistent
with the procedural rules governing default judgment. Rules 107(h) and 239 of the
Texas Rules of Civil Procedure provide that a default judgment may be entered “at
any time after a defendant is required to answer” so long as the return of service has
been on file with the clerk for 10 days prior to the entry of judgment. AAMCO was
required to answer Bova’s original petition in January 2014. The return of service
was on file with the clerk more than four months before judgment was entered in
June 2014. Therefore, the trial court did not err in entering judgment before the
deadline to answer Bova’s unserved amended petition passed. Accordingly, we
overrule AAMCO’s third issue.
Conclusion
We conclude that AAMCO failed to show error on the face of the record.
Therefore we affirm the trial court’s judgment.
Michael Massengale
Justice
Panel consists of Chief Justice Radack and Justices Massengale and Brown.
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