REVERSE and REMAND; and Opinion Filed July 17, 2013.




                                         S  In The
                                      Court of Appeals
                               Fifth District of Texas at Dallas

                                      No. 05-11-01189-CV

   JOHN PRIDE, INDIVIDUALLY & PHAREALE INVESTMENTS, INC., Appellants
                                 V.
            MARLISA WILLIAMS & MORRIS WILLIAMS, Appellees

                      On Appeal from the 298th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. DC-10-03869

                               MEMORANDUM OPINION
                         Before Justices Bridges, FitzGerald, and Myers
                                  Opinion by Justice Bridges


       Appellants John Pride (“Pride”) and Phareale Investments, Inc. (“Phareale”) bring this

restricted appeal from a no-answer default judgment. In four issues, appellants contend: (1) the

trial court did not acquire personal jurisdiction over Pride and Phareale because the return of

citation conflicts with the citation, petition, and judgment; (2) the live pleading in effect on the

date the final default judgment was issued sought more onerous relief against Pride and Phareale

than the original petition, but was not served on appellants; (3) there is no evidence to support

any of the awards of damages in the default judgment because no reporter’s record was made of

the prove-up hearing and no documentary evidence was presented to the trial court; and (4)

attorney’s fees were awarded for causes of action that do not, as a matter of law, allow recovery

of attorney’s fees. For the reasons set forth below, we reverse and remand.
                                                      Background

          On April 2, 2010, Marlisa and Morris Williams filed their original petition against Pride

and Phareale. Citations of service were issued to “JOHN PRIDE, 1115 FROST HOLLOW DR.,

DESOTO, TX 75115” and “PHAREALE INVESTMENTS, INC. BY SERVING ITS

REGISTERED AGENT JOHN PRIDE, 1115 FROST HOLLOW DR., DESOTO, TX 75115.”

Filed returns of service, on the other hand, noted service on “JOHN PRIDE, VICKERY

STATION POST OFFICE SKILLMAN AT ABRHAMS PLACE OF EMPLOYMENT,

DALLAS, TEXAS 75231” and “PHAREALE INVESTMENTS INC., JOHN PRIDE REG.

AGENT, VICKERY STATION POST OFFICE SKILLMAN AT ABRHAMS PLACE OF

EMPLOYMENT, DALLAS, TEXAS 75231.”

          On September 24, 2010, appellees filed their first amended petition, alleging new causes

of action against appellants and adding J.P. Morgan Chase Bank as a defendant. 1 The record

reflects citation issued for Pride, but it was “unserved.” There is no indication in the record

citation issued or was served with regard to Phareale.

          On November 30, 2010, the trial court signed an “Interlocutory Default Judgment”

against Pride and Phareale. Following appellees’ submission of their amended motion for

default judgment, the trial court then entered its “Final Default Judgment” on May 31, 2011

against appellants. The trial court’s docket sheet does not reflect a hearing on the motion, but

notes “submitted default judgment” on May 17, 2011. A letter from the court reporter to this

Court states she cannot locate a record of any hearing in this matter. The docket sheet does not

indicate whether a copy of the final default judgment was forwarded to either Pride or Phareale.

          Pride and Phareale filed their notice of restricted appeal on August 31, 2011. In an order,

dated May 2, 2012, this Court abated the appeal to permit the trial court to dispose of the

   1
       J.P. Morgan Chase Bank was later non-suited.



                                                         –2–
remaining issues 2 and modify the judgment so as to make it final. On September 2, 2012, the

trial court incorporated its May 31, 2011 order and disposed of the remaining issues. We then

reinstated this appeal.

                                                                 Analysis

           To prevail on their restricted appeal, appellants must establish that: (1) they filed notice

of the restricted appeal within six months after the judgment was signed; (2) they were a party to

the underlying lawsuit; (3) they did not participate in the hearing that resulted in the judgment

complained of and did not timely file any postjudgment motions or requests for findings of fact

and conclusions of law; and (4) error is apparent on the face of the record. TEX. R. APP. P.

26.1(c), 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004), Lytle v.

Cunningham, 261 S.W.3d 837, 839 (Tex. App.—Dallas 2008, no pet.). The only factor in

question in this appeal is whether there is error apparent on the face of the record. For purposes

of restricted appeal review, the face of the record consists of all the papers on file in the appeal,

including the reporter’s record. Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270

(Tex. 1997) (per curiam); Thomas v. Martinez, 217 S.W.3d 680, 683 (Tex. App.—Dallas 2007,

pet. struck).

                                          Failure to Serve First Amended Petition

           Because it is dispositive of this appeal, we first turn to appellants’ second issue. Pride and

Phareale contend the default judgment against them is void because (1) the first amended petition

was not served on them and (2) the first amended petition sought more onerous relief against

them than the original petition.

    2
        This Court’s abatement order states as follows:
           This judgment disposes of all of Marlisa’s claims against Pride and Phareale, but does not dispose of Morris’s claims for
           unliquidated damages for the alleged fraud committed by appellants nor his claims for attorney’s fees. Additionally,
           although the judgment states Chase has been dismissed from the suit, the record contains only the pleading filed by Marlisa
           dismissing her claims against Chase. It does not contain or reference any pleading by Morris non-suiting his claims against
           Chase.



                                                                     –3–
       As a general rule, a defendant who does not answer admits all material facts properly

alleged in the opponent’s petition. Bennett v. Wood County, 200 S.W.3d 239, 241 (Tex. App.-

Tyler 2006, no pet.). “But a defendant’s failure to answer admits liability only when the live

pleadings have been properly served.”         Id. (citing Caprock Constr. Co. v. Guaranteed

Floorcovering, Inc., 950 S.W.2d 203, 204 (Tex. App.—Dallas 1997, no writ)). Service of an

amended petition on a party that has not yet appeared is required when a plaintiff “seeks a more

onerous judgment than prayed for in the original pleading.” See Fidelity & Guar. Ins. Co. v.

Drewery Constr. Co., 186 S.W.3d 571, 574 (Tex. 2006). Failure to serve such an amended

petition renders any default judgment granted on the amended petition void. See Caprock, 950

S.W.2d at 205; Cebcor Serv. Corp. v. Landscape Design and Constr., Inc., 270 S.W.3d 328, 332

(Tex. App.—Dallas 2008, no pet.).

       Following the filing of appellees’ first amended petition, the record before us reflects

citation issued for Pride, but it was “unserved.” There is no indication citation issued or was

served with regard to Phareale. Because the record reflects appellants were not served with the

first amended petition, we must determine whether the first amended petition sought more

onerous relief against appellants than the original petition. See Fidelity, 186 S.W.3d at 574.

       “More onerous” is anything that exposes the defendant to additional liability.            See

Onwukwe v. Ike, 137 S.W.3d 159, 165-66 (Tex. App.—Houston [1st Dist.] 2004, no pet.)

(subsequent pleadings imposing a more onerous judgment on defendant must be served on the

defendant); Atwood v. B&R Supply & Equip. Co., Inc., 52 S.W.3d 265, 267-68 (Tex. App.—

Corpus Christi 2001, no pet.) (reversing default judgment when second petition alleging suit on

sworn account imposed more onerous judgment than original petition on breach of contract);

Caprock, 950 S.W.2d at 205 (reversing default judgment when addition of new plaintiff in a

subsequent petition exposed defendant to additional liability).

                                               –4–
       In their first amended petition, appellees reiterated the facts and relief sought in the

original petition and then added a claim, alleging Pride and Phareale “fraudulently applied and

secured a home equity loan with J.P. Morgan Chase. . . thereby incurring a fraudulent lien and

withdrawal of equity value from the real property owned by [appellees].” The amended petition

also alleged, for the first time, that appellants had “actual and constructive notice that they did

not have ownership of the property” and appellees sought a declaration that the loan was

fraudulent and the lien was void. They also requested additional relief, seeking Defendant Chase

to remove all liens against said property.      Appellees also added a request for additional

exemplary damages against appellants under section 27.01(d) of the Texas Business &

Commerce Code for appellants’ alleged “actual knowledge and awareness of the falsity of the

loan documents.”    Based upon these additions, we conclude the first amended petition sought

more onerous relief. See Caprock, 950 S.W.2d at 205. Appellees were, therefore, required to

serve their first amended petition upon appellants before receiving a default judgment in their

favor. See Fidelity, 186 S.W.3d at 574. Because there is no evidence appellants were served

with the first amended petition, the trial court erred in entering a default judgment against Pride

and Phareale. See Caprock, 950 S.W.2d at 205.

       We, therefore, sustain appellant’s second issue and conclude the no-answer default

judgment is void. See id. Because we have sustained this issue, we need not reach appellants’

other issues.




                                               –5–
                                            Conclusion

       For the reasons set forth in this opinion, we reverse the trial court’s default judgment

against appellants and remand this cause to the trial court.




                                                      /David L. Bridges/
                                                      DAVID L. BRIDGES
                                                      JUSTICE


111189F.P05




                                                –6–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

JOHN PRIDE, INDIVIDUALLY &                            On Appeal from the 298th Judicial District
PHAREALE INVESTMENTS, INC.,                           Court, Dallas County, Texas
Appellants                                            Trial Court Cause No. DC-10-03869.
                                                      Opinion delivered by Justice Bridges.
No. 05-11-01189-CV         V.                         Justices FitzGerald and Myers participating.

MARLISA WILLIAMS & MORRIS
WILLIAMS, Appellees

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and the case is REMANDED for proceedings consistent with this Court’s opinion.
     It is ORDERED that appellants JOHN PRIDE, INDIVIDUALLY & PHAREALE
INVESTMENTS, INC. recover their costs of this appeal from appellees MARLISA WILLIAMS
& MORRIS WILLIAMS.


Judgment entered this 17th day of July, 2013.




                                                      /David L. Bridges/
                                                      DAVID L. BRIDGES
                                                      JUSTICE




                                                –7–
