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                                   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
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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.



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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




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