Opinion issued January 14, 2016




                                       In The

                                Court of Appeals
                                      For The

                           First District of Texas
                              ————————————
                               NO. 01-14-00974-CV
                             ———————————
                 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



                                          9
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-



                                          11
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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