                    COURT OF APPEALS
                    SECOND DISTRICT OF TEXAS
                         FORT WORTH

                        NO. 02-16-00265-CV


U.S. BANK NATIONAL                                APPELLANT
ASSOCIATION, AS TRUSTEE
SUCCESSOR IN INTEREST TO
BANK OF AMERICA, NATIONAL
ASSOCIATION, AS TRUSTEE AS
SUCCESSOR BY MERGER TO
LASALLE BANK NATIONAL
ASSOCIATION AS TRUSTEE FOR
CERTIFICATE HOLDERS OF BEAR
STEARNS ASSET BACKED
SECURITIES I TRUST, 2007-HE3,
ASSET BACKED CERTIFICATES,
SERIES 2007-HE3

                                   V.

OHIO GRAVY BISCUIT, INC., AN                       APPELLEE
OHIO CORPORATION, AS
TRUSTEE FOR THE TEAL COVE
2007 LAND TRUST

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       FROM THE 393RD DISTRICT COURT OF DENTON COUNTY
                  TRIAL COURT NO. 16-00399-393

                                ----------
                         MEMORANDUM OPINION1

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      Appellant U.S. Bank National Association, as Trustee Successor in Interest

to Bank of America, National Association, as Trustee as Successor by Merger to

LaSalle Bank National Association as Trustee for Certificate Holders of Bear

Stearns Asset Backed Securities I Trust, 2007-HE3, Asset Backed Certificates,

Series 2007-HE3 (Bank) owned a deed of trust on property acquired by Appellee

Ohio Gravy Biscuit, Inc., an Ohio Corporation, as Trustee for the Teal Cove 2007

Land Trust (Biscuit).

      Biscuit sued under the Uniform Declaratory Judgments Act for a ruling that

Bank’s deed of trust had been discharged, filing an original petition and then a

first amended petition. In both petitions, Biscuit asked the trial court to render

judgment that the deed of trust claimed by Bank “has been discharged.”

      Biscuit moved for a no-answer default judgment, and the trial court entered

a judgment in which it quieted title to the property in and to Biscuit and declared

Bank’s lien “void and is of no force and effect.” The trial court further pronounced

that Biscuit was the property’s owner “and holds title thereto not subject to any

lien or encumbrance, save for taxes and assessments.” [Emphasis added.]

Several months later, Bank filed a notice of restricted appeal. See Tex. R. App.

P. 26.1(c).


      1
       See Tex. R. App. P. 47.4.

                                          2
      A restricted appeal is available to a party who did not participate in the

hearing that resulted in the judgment complained of, provided that the party

brings the appeal within six months after the trial court signed the judgment and

that error is apparent on the face of the record. Mandel v. Lewisville ISD, 445

S.W.3d 469, 474 (Tex. App.—Fort Worth 2014, pet. denied) (listing restricted

appeal elements); see Tex. R. App. P. 30.

      In its third point, Bank complains that the trial court erred by, among other

things, ruling that the property was “not subject to any lien or encumbrances”

when Biscuit failed to plead that there were no other liens or encumbrances.

      A judgment must be based upon pleadings, and a plaintiff may not sustain

a default judgment that grants relief in excess of that requested by him. See U.S.

Nat’l Bank Ass’n v. Johnson, No. 01-10-00837-CV, 2011 WL 6938507, at *2–3

(Tex. App.—Houston [1st Dist.] Dec. 30, 2011, no pet.) (mem. op.) (citing Stoner

v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979), and holding that the trial court

erred when it quieted title to the house in Johnson as against USNBA and thus

granted more relief than Johnson had requested); Binder v. Joe, 193 S.W.3d 29,

33 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (“By granting more relief than

Danny requested in his petition, the trial court erred, and that error is apparent on

the face of the record.”). Accordingly, because the trial court granted more relief

than Biscuit requested, error is apparent on the face of the record, and we

sustain Bank’s third point without reaching its remaining two points. See Tex. R.

App. P. 47.1.

                                         3
      Having sustained Bank’s third point, we reverse the trial court’s judgment

and remand this case to the trial court for further proceedings. See Tex. R. App.

P. 43.2(d).



                                                 /s/ Bonnie Sudderth
                                                 BONNIE SUDDERTH
                                                 JUSTICE

PANEL: SUDDERTH, KERR, and PITTMAN, JJ.

DELIVERED: July 27, 2017




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