Modified, affirmed as modified, and Opinion Filed this 10th day of June, 2014.




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-00682-CV

                PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant
                                    V.
                          BEN TALPLACIDO, Appellee

                       On Appeal from the County Court at Law No. 4
                                   Collin County, Texas
                           Trial Court Cause No. 004-421-2010

                             MEMORANDUM OPINION
                        Before Justices Bridges, Francis, and Lang-Miers
                                   Opinion by Justice Francis
       This is the second appeal in a bill of review case in which Ben Talplacido sued to vacate

a default judgment taken by Portfolio Recovery Associates, LLC, and recover property sold at

foreclosure in execution of the judgment. In this appeal, Portfolio brings three issues in which it

challenges the trial court’s award of monetary damages. Talplacido has not filed a responsive

brief. Because we agree there are no pleadings to support the monetary damages, we modify the

trial court’s judgment to delete the awards of $10,000 for loss of fair value of property sold and

$13,200 for lost rent. We affirm the judgment as modified.

       The facts underlying this suit are fully set out in the first appeal. See Portfolio Recovery

Assocs., LLC v. Talplacido, No. 05-10-01244-CV, 2012 WL 204541 (Tex. App.—Dallas Jan. 18,

2012, no pet.) (mem. op.). Briefly, in 2008, Portfolio obtained a default judgment for $25,283.86
plus $6,320.97 in attorney’s fees for breach of contract on a debt. Portfolio executed on the

judgment against real property owned by Talplacido, the property was sold to the highest bidder

for $4000, and a constable’s deed was filed in the county records.

           Talplacido filed a petition for bill of review to set aside the default judgment, alleging he

was not properly served. In his petition, Talplacido asked that the constable’s deed be set aside,

Portfolio take nothing, and he recover the costs expended in filing the petition and “other and

further relief at law and equity to which Plaintiff may be justly entitled.” When Portfolio failed

to answer, Talplacido obtained a default judgment that set aside the constable’s deed and

awarded monetary damages in the amount of the damages ($25,283.86) and attorney’s fees

($6,320.97) awarded to Portfolio in the default judgment, $7,000 as attorney’s fees for the bill of

review proceeding, $311 for costs of court, and interest.

           This judgment led to the first appeal. Portfolio brought two issues, arguing the trial court

abused its discretion by failing to grant its motion for new trial and the evidence was legally

insufficient to support damages and attorney’s fees. See Portfolio Recovery Assocs., LLC, No.

05-10-01244-CV, 2012 WL 204541, at *1. We sustained Portfolio’s damages issue, explaining

that Talplacido’s damages were unliquidated because his petition “did not allege any damages,

and no written instrument showed the monetary damages awarded by the trial court.” Further,

we explained that Talplacido presented no evidence “that he paid any part of the judgment aside

from the sale of the real estate for $4000,”1 or “any other economic or noneconomic damages

that would support the damages awarded by the court.” We therefore reversed the portion of the

judgment awarding Talplacido “$25,283.86 as the principal amount” and $6,320.97 as attorney’s

fees awarded on the “improperly taken default judgment,” affirmed the judgment in all other

respects, and remanded for further proceedings consistent with the opinion.

   1
       We noted the trial court’s judgment set aside the constable’s deed.



                                                                      –2–
        On remand, Portfolio filed a written objection to the trial court hearing evidence of

monetary damages because Talplacido did not plead for damages in his petition. Talplacido filed

a combined written response and an “Original Motion for Unliquidated Damages.” In his

motion, Talplacido asserted the property sold as the result of an “unlawful judicial lien and

subsequent sheriff’s sale” was rental property and he suffered damages in the amount of $34,100

in lost rents and an unstated amount in lost value of the property. Talplacido did not amend his

petition.

        At trial, Portfolio again objected to evidence of monetary damages as outside the

pleadings. The trial court overruled his written and oral objections. After hearing the evidence,

the trial court ordered Talplacido recover from Portfolio $10,000 in “loss of fair value of

property sold,” $13,200 in lost rent, $7,000 in attorney’s fees, and post-judgment interest.

        In this appeal, Portfolio brings three issues all related to the monetary damages awarded

in the judgment. Its second issue argues the judgment was improper because it granted damages

that were not pleaded for in Talplacido’s petition.

        The trial court’s judgment shall conform to the pleadings of the parties. TEX. R. CIV. P.

301; Cunningham v. Parkdale Bank, 660 S.W.2d 810, 813 (Tex. 1983).                 The purpose of

pleadings is to give the parties notice of claims, defenses, and relief sought. Perez v. Briercroft

Serv. Corp., 809 S.W.2d 216, 218 (Tex. 1991). Absent trial by consent, a party may not be

granted relief in the absence of pleadings to support that relief. Cunningham, 660 S.W.2d at 813

(citing Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979). An award of judgment not

pleaded is erroneous. Id.

        In Stoner, the dispute arose out of a contract to buy and sell stock in a corporation that

owned a radio station. Stoner was the original plaintiff. Texas Media intervened and sought a

declaratory judgment as to its rights and liabilities and injunctive relief against Stoner. 578

                                                –3–
S.W.2d at 681. Stoner filed an answer. On the morning of trial, Stoner’s attorney appeared and

urged a “special appearance.” Id. When the trial court denied the special appearance, Stoner’s

attorney declined to proceed further and left. Id. After hearing the evidence, the trial court

granted all the relief requested in the pleadings. In addition, the trial court ordered that Texas

Media recover from Stoner $50,000 in relief not requested in pleadings. Id. at 682. Stoner

appealed.

       The supreme court reformed the judgment to eliminate the $50,000 damage award, noting

there was “no mention” in Texas Media’s pleadings that it sustained money damages nor was

there any prayer for such damages.          Id. at 683. The court reasoned that, under such

circumstances, Stoner did not have “fair notice” that the trial court might award money damages

against him at trial. Id. 684–85. Further, the court stated that a prayer for “such other and

further relief to which plaintiff . . . may show himself entitled” did not “enlarge a pleading to the

extent that it embraces an entirely different cause of action for which fair notice does not exist.”

Id.

       Here, Talplacido’s petition for bill of review alleged that Portfolio wrongfully obtained a

default judgment. He asked to set aside the default judgment and the constable’s deed and

requested costs expended in filing the petition. Talplacido did not seek any relief in the form of

monetary damages, and his prayer for “such other relief at law or equity” to which he was

entitled did not enlarge his allegations to include a request for such damages. Although he filed

a motion for unliquidated damages on remand, a motion is not a pleading. U.S. Nat’l Bank Ass’n

v. Johnson, No. 01-10-00837-CV, 2011 WL 6938507, at *1 n.2 (Tex. App.—Houston [1st Dist.]

Dec. 30, 2011, no pet.) (mem. op.); see TEX. R. CIV. P. 45 (“Pleadings in the district and county

courts shall (a) be by petition and answer. . . .”); TEX. R. CIV. P. 78 (“The pleading of plaintiff

shall consist of an original petition, and such supplemental petitions as may be necessary in the

                                                –4–
course of pleading by the parties to the suit.”). Finally, Portfolio filed a written objection to

evidence of monetary damages and also objected at trial; thus, this is not a case where the issue

was tried by consent.2                 Because there are no pleadings to support monetary damages, the

judgment is erroneous. We sustain the second issue. Our disposition of this issue makes it

unnecessary to address the remaining issues.

           We modify the trial court’s judgment to delete the awards of $10,000 for loss of fair

value of property sold and $13,200 for lost rent. We affirm the judgment as modified.




                                                                            /Molly Francis
130682F.P05                                                                 MOLLY FRANCIS
                                                                            JUSTICE




     2
        To the extent Portfolio’s issue seeks to reverse the $7000 awarded as attorney’s fees, that amount was affirmed in the previous appeal and
is not subject to review in this appeal.



                                                                      –5–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

PORTFOLIO RECOVERY ASSOCIATES,                        On Appeal from the County Court at Law
LLC, Appellant                                        No. 4, Collin County, Texas
                                                      Trial Court Cause No. 004-421-2010.
No. 05-13-00682-CV         V.                         Opinion delivered by Justice Francis;
                                                      Justices Bridges and Lang-Miers
BEN TALPLACIDO, Appellee                              participating.

    In accordance with this Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:

       To delete the awards of $10,000 for loss of fair value of property sold and
       $13,200 for lost rent.

It is ORDERED that, as modified, the judgment of the trial court is AFFIRMED.

        It is ORDERED that appellant Portfolio Recovery Associates, LLC recover its costs of
this appeal from appellee Ben Talplacido.


Judgment entered this 10th day of June, 2014.




                                                      /Molly Francis/
                                                      MOLLY FRANCIS
                                                      JUSTICE




                                                –6–
