Failure to serve amended petition containing new claims requires reversal of default judgment
Harrison v. Gaubert (Tex.App.- Houston [1st Dist.] May 21, 2009)(Hanks)
(Tex.App.- Houston [1st Dist.] May 21, 2009)(Hanks)(default judgment case) (default judgment improperly
granted based on unserved amended petition)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Hanks
Before Chief Justice Radack, Justices Alcala and Hanks)
01-07-00814-CV Roger Harrison v. Harold and Virginia Gaubert
Appeal from 61st District Court of Harris County
Trial Court Judge: Hon. John Donovan
Roger Harrison, appellant, complains that the trial court erred by entering default judgment against him
and by denying his subsequent motion for new trial. We reverse and remand.
In November 2005, Harold and Virgina Gaubert filed a lawsuit against numerous defendants, including
Heritage Moving and Storage (“Heritage”), and Roger Harrison, individually and as a representative of
Heritage. The Gauberts’ lawsuit alleged that they had contracted with Heritage, through Harrison as its
representative, to move and store the Gauberts’ furniture after the sale of their home. According to the
Gauberts, their contract with Heritage called for their furniture and belongings to be transported to and
stored in a climate-controlled warehouse, and also called for Heritage to insure their belongings. The
Gauberts’ pleadings contended that their belongings were not stored in a climate-controlled warehouse,
and that the proper insurance was not procured, even though they were charged for both of these items.
Accordingly, the Gauberts’ original petition alleged causes of action for fraud, breach of contract,
violations of the Texas Deceptive Trade Practices-Consumer Protection Act (the “DTPA”), negligence and
gross negligence. They sought to recover actual and exemplary damages for lost and damaged belongings
and mental anguish and to recoup payments made under the contract and expenses incurred in moving.
According to the return of service in the record, Harrison was served with process and notice of the suit on
March 21, 2006. Harrison did not file an answer or otherwise appear in the lawsuit.
In May 2006, the Gauberts filed an amended petition, this time alleging negligent misrepresentation,
gross negligence, negligence per se, fraudulent inducement, fraud, fraud by nondisclosure, breach of
contract, violations of the DTPA, and breach of the duty of good faith and fair dealing. The Gauberts also
alleged that the defendants, including Harrison, were liable under the theory of joint enterprise, apparent
authority and agency. As damages, the Gauberts sought to recover actual damages including those for
lost and damaged belongings, reimbursement for payments made for insurance and climate-controlled
storage, expenses incurred in moving their belongings to another storage facility, lost wages,
“miscellaneous expenses,” and “other foreseeable economic loss.” The Gauberts’ amended petition also
sought to recover mental anguish damages, punitive and exemplary damages, treble damages, attorneys’
fees, and prejudgment and postjudgment interest.
In May 2007, the Gauberts moved for a no-answer default judgment against Harrison and Heritage,
alleging that “these Defendants were served with citation and a copy of plaintiff’s [sic] petition by personal
delivery to their registered agent for service.” The Gauberts attached to their motion for default judgment a
copy of the return of service, which stated that Harrison had been served with citation and with a copy of
the Gauberts’ original petition on March 20, 2006. There is no evidence in the record that the amended
petition was ever served on Harrison.
On June 22, 2007, the trial court entered a default judgment against Harrison and Heritage. The trial
court’s order stated
It is further ordered that $42,538.22 has been awarded to Plaintiffs for items damaged in the move.
It is further ordered that $43,871.03 has been awarded to Plaintiffs for items damaged in the move.
It is further ordered that $10,495.00 has been awarded to the Plaintiffs for the recoupment of the expenses
paid to Defendants.
It is further ordered that the court finds that the Defendants acted knowingly and intentionally; therefore, all
appropriate liquidated damages are trebled.
It is further ordered the $63,180.75 be awarded as reasonable attorneys’ fees.
On July 25, 2007, Harrison filed a motion for new trial. In his motion for new trial, Harrison did not
contest that he had been served with process and the Gaubert’s original petition and that he failed to
answer. Instead, he stated that he did not recall being served with the lawsuit and that his failure to answer
was therefore not the result of mistake or indifference. In addition, Harrison’s motion for new trial argued
that he had a meritorious defense to some or all of the Gauberts’ claims against him.
On September 11, 2007, Harrison filed a supplemental motion for new trial, arguing that the default
judgment was based on the Gauberts’ amended petition, which had never been served on him. Two days
after Harrison filed his supplemental motion for new trial, the trial court denied Harrison’s motion for new
In six points of error, Harrison contends that (1) the trial court abused its discretion by denying his
motion for new trial after a default judgment was granted against him; (2) the default judgment entered by
the court is void because it is based upon an amended petition that was never served on him and that
contained “additional and more onerous causes of action”; (3) the trial court erred by awarding the
Gauberts unliquidated damages in the default judgment without conducting a hearing on those damages;
(4) the trial court erred in awarding $63,180.75 in attorneys’ fees to the Gauberts as a result of the default
judgment; (5) the trial court erred by failing to apply settlement credits to the amount of damages awarded
in the default judgment; and (6) the trial court’s damages award contains a duplicative award, fails to
distinguish which defendant is liable for which amount, and awards damages that are not supported by the
Failure to Serve the Amended Petition
Because it is dispositive of this appeal, we turn first to Harrison’s second point of error. Harrison
contends that the default judgment against him is void because it is based upon the Gauberts’ amended
petition and because that amended petition (1) was never served upon him and (2) contained “additional
and more onerous causes of action.”
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.” Fidelity & Guar. Ins. Co. v. Drewery
Constr. Co., 186 S.W.3d 571, 574 (Tex. 2006) (quoting Weaver v. Hartford Accident & Indem. Co., 570 S.
W.2d 367, 370 (Tex. 1978)). Failing to serve such an amended petition renders any default judgment
granted on the amended petition void. See, e.g., In re Discount Rental, Inc., 216 S.W.3d 831, 832 (Tex.
2007) (default judgment taken without proper service is void) (citing Smith v. Commercial Equip. Leasing
Co., 678 S.W.2d 917, 918 (Tex. 1984) (holding “the default judgment . . . void” for want of proper service));
Caprock, 950 S.W.2d at 205.
On appeal, the Gauberts do not contend that their amended petition was ever served upon Harrison.
Instead, they argue that the amended petition was not “more onerous” than their original petition.
In addition, the Gauberts argue on appeal that the trial court’s default judgment is basedupon their original
petition rather than their amended petition. We disagree. An amended pleadingsupplants earlier pleadings,
and the supplanted pleading is no longer part of the pleading in the cause. See Tex.R. Civ. P. 65; United
Oil & Minerals, Inc. v. Costilla Energy, Inc., 1 S.W.3d 840, 843 (Tex.App.—Corpus Christi 1999, pet. dism’
d). The trial court could not have rendered a default judgmenton a petition that was no longer live.
“More onerous” is anything that exposes the defendant to additional liability. See Caprock, 950 S.W.2d
at 205 (reversing default judgment because addition of new plaintiff in later petition exposed defendant to
additional liability); see also 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 for “simple suit alleging breach of
contract”); Onwukwe v. Ike, 137 S.W.3d 159, 165-66 (Tex. App.— Houston [1st Dist.] 2004, no pet.)
(acknowledging that subsequent pleadings imposing more onerous judgment on defendant must be served
on defendant) (citing Rose v. Rose, 117 S.W.3d 84, 91 (Tex. App.—Waco 2003, no pet.) (stating, “A
plaintiff must serve a non-answering defendant with amended pleadings only when the amended pleading
sets up a new cause of action or seeks a more onerous judgment against the defendant.”))
The Gauberts’ amended petition added a new cause of action for negligent misrepresentation. In
addition, the amended petition alleged joint and several liability, while the original petition did not. Finally,
the amended petition sought new categories of damages not previously sought in the original petition,
including a claim for attorneys’ fees. We therefore conclude that the Gauberts were required to serve their
amended petition upon Harrison before receiving a default judgment in their favor. Because there is no
evidence that Harrison was served with this amended petition, the trial court erred by entering a no-answer
default judgment against Harrison.
The Gauberts also argue that, even if the trial court erred by entering the default judgment against
Harrison, that error has been waived on appeal by Harrison’s failure to urge it in his motion for new trial.
However, a void judgment is not susceptible to ratification or confirmation, and its nullity cannot be waived.
Easterline v. Bean, 121 Tex. 327, 49 S.W.2d 427, 429 (1932); In re Guardianship of Erickson, 208 S.W.3d
737, 740 (Tex. App.—Texarkana 2006, no pet.).
Because we conclude that the default judgment entered against Harrison is void, we sustain Harrison’s
second point of error and do not reach the other issues presented by Harrison.
We reverse the trial court’s default judgment against Harrison, and remand this cause to the trial court.
George C. Hanks, Jr.
Panel consists of Chief Justice Radack and Justices Alcala and Hanks