ACCEPTED 01-14-00974-cv FIRST COURT OF APPEALS HOUSTON, TEXAS 5/29/2015 3:58:55 PM CHRISTOPHER PRINE CLERK
CAUSE NO. 01-14-00974-CV
FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS In The 5/29/2015 3:58:55 PM Court of Appeals CHRISTOPHER A. PRINE For The Clerk st 1 District of Texas ________________________________________
AAMCO TRANSMISSIONS, INC. Appellant,
v.
JAMES A. BOVA Appellee. ________________________________________
On Appeal from the 113th Judicial District Court Harris County, Texas Trial Court No. 2013-77066 ________________________________________
Appellee’s Brief ________________________________________
Mestemaker, Straub & Zumwalt David K. Mestemaker SBN: 13974600 FBN: 14410 3100 Timmons Lane Suite 455 Houston, Texas 77027 Telephone: (713) 626-8900 Facsimile: (713) 626-8900 Counsel for Appellee No Oral Argument Requested IDENTITY OF PARTIES AND COUNSEL
Appellant L. Bradley Hancock hancockl@gtlaw.com Matthew L. Simmons simmonsm@gtlaw.com Greenberg Traurig, LLP 1000 Louisiana, Suite 1700 Houston, Texas 77002 Telephone: (713) 374-3500 Facsimile: (713) 374-3505
Appellant and Trial Counsel for AAMCO TRANSMISSIONS, INC.
Appellee David K. Mestemaker dkm@msandz.com Mestemaker, Straub & Zumwalt 3100 Timmons Lane, Suite 455 Houston, Texas 77027 Telephone: (713) 626-8900 Facsimile: (713) 626-8910
Appellee and Trial Counsel for JAMES BOVA.
-2- Table of Contents
Identity of Parties and Counsel ............................................................................ 2
Index of Authorities ............................................................................................... 5
Statement of Case ................................................................................................... 6
Relevant Procedural Background ......................................................................... 6
Issues Presented ...................................................................................................... 6
Statement of Facts .................................................................................................. 7
Summary of Argument .......................................................................................... 7
Argument ............................................................................................................ ….9
Standard of Review .................................................................................................. 9
I. There is no error on the face of the record regarding the trial court’s granting of Appellee’s motion for default judgment……………………...9
A. The Final Judgment is proper because AAMCO admitted liability on the claims for which the trial court entered a default judgment……………...9
i. The amended petition is not properly before this Court in this Restricted Appeal……………………………………………………………………..12
ii. The trial court rendered its opinion on May 16, 2014 - not June 9, 2014 as Appellant misapprehends……………………………………………...13
B. Even if the amended petition was allowed to be part of the record of this Restricted Appeal, (which caselaw precludes), and even if the trial court based its May 16, 2014 rendition of judgment on the amended petition that was filed two weeks later, service of the amended petition was not required as the relief sought therein was not more onerous than that sought in the original petition………………………………………...13-14
i. The maximum relief sought does not create a more onerous burden…..14
ii. Amending the petition which has the effect of nonsuiting two co- Defendants does not create a more onerous burden…………………….15
-3- iii. No new causes of action or new respondeat superior claims were added in the amended petition……………………………………………………...15
C. There was no requirement that the amended petition be served on Appellant, as it was not more onerous…………………………………...17
D. The judgment is not void because it was rendered before AAMCO’s answer was due………………………………………………………….. 18
Conclusion ............................................................................................................. 19
Prayer .................................................................................................................... 20
Certificate of Service ............................................................................................ 21
Certification .......................................................................................................... 22
Certificate of Compliance .................................................................................... 22
Appendix................................................................................................................ 23
-4- INDEX OF AUTHORITIES
Cases Alexander v. Lynda’s Boutique 134 S.W.3d 845, 848 (Tex. 2004)…………………………………………………9 Caprock Construction Co. v. Guaranteed Floorcovering, Inc 950 S.W.2d 203, 205 (Tex. App.-Dallas 1997, no writ)……………………...11, 19 General Elec. Co. v. Falcon Ridge Apartments 811 S.W. 2d 942, 944 (Tex. 1991)……………………………………9, 12, 17, 19 Harris v. Shoults 877 S.W.2d 854, 855 (Tex. App.- Fort Worth 1994, no writ)…………………...11 In re Bland 960 S.W.2d 123, 124 (Tex. App.-Houston [1st Dist.] 1997, orig. proceeding)…..13 Laas v. Williamson 156 S.W.3d 854, 857 (Tex. App.-Beaumont 2005, no pet.)………………….…..12 McKernan v. Riverside National Bank, N.A. 858 S.W.2d 613 (Tex. App.-Fort Worth 1993)…………………………………..15 Mushroom Sales v. Weenick 851 S.W.2d 346, 350 (Tex. App.-Dallas 1993, writ denied)..………………........18 Norman Commc’ns v. Tex. Eastman Co. 955 S.W.2D 269,270 (Tex 1997) (per curiam) (emphasis added)………………...9 Palomin v. Zarskey Lumber Co. 26 S.W.3d 690, 694 (Tex. App.-Corpus Christi 2000, pet denied) cf….…….11, 17 Reese v. Piperi 534 S.W.2d 329, 330 (Tex.1976)…………………………………………………13 Rose v. Rose 117 S.W.3d 84, 91 (Tex. App.-Waco 2003, no pet.) (citing Palomin)……….11, 17 S&A Rest. Corp. v. Leal 892 S.W.2d 855, 857 (Tex.1995)…………………………………………………13 Verret v. Verret 570 S.W.2d 138, 139-40 (Tex. App.-Houston [1st Dist.] 1978, no writ)...…….…13
-5- STATEMENT OF THE CASE
Nature of the Case: This was a personal injury case based on negligence, gross negligence, defamation, and intentional infliction of emotional distress caused by Appellee’s employment by Appellant.
Trial Court: The Honorable Michael Landrum, 113th Judicial District
Court, Harris County, Texas
Trial Court’s Disposition: Default Judgment in favor of Plaintiff.
RELEVANT PROCEDURAL BACKGROUND
On December 30, 2013, Appellee filed his original petition. (CR 3-10) Appellant
was served with the Original Petition on January 12, 2014. (CR 14-16) Appellant’s
answer was due on February 3, 2014, but none was filed. Appellee moved for Default
judgment on April 22, 2014 against Appellant only. (CR 17-33) A Final Judgment was
rendered in favor of Appellee on May 16, 2014 in open Court. (Appendix “A”, pg. 8)
Appellee filed his amended petition on May 30, 2014. (CR 34-40) A judgment reciting
the judgment rendered on May 16, 2014 was signed on June 9, 2014. (CR 42)
ISSUES PRESENTED
1. Whether there is error on the face of the record regarding the default judgment granted
in favor of Appellee.
2. Whether the trial court based his judgment on the amended petition or original petition.
3. Whether the First Amended Petition is included in the “face of the record” and
properly before this Court.
-6- 4. Whether the First Amended Petition is more “onerous”, thereby requiring service on
Appellant.
STATEMENT OF FACTS
To the Honorable Justices of the First Court of Appeals:
On December 30, 2013, Appellee filed his original petition. (CR 3-10) Appellant
was served with the Original Petition on January 12, 2014. (CR 14-16) Appellant’s
answer was due on February 3, 2014, but none was filed. Appellee moved for Default
judgment on April 22, 2014 against Appellant only. (CR 17-33) A Final Judgment was
rendered in favor of Appellee on May 16, 2014 in open Court. (Appendix “A”, pg. 8)
Appellee filed his amended petition on May 30, 2014. (CR 34-40) A judgment (a
ministerial act) reciting the judgment rendered on May 16, 2014 was signed on June 9,
2014. (CR 42)
SUMMARY OF THE ARGUMENT
The case that forms the basis of this appeal is born out of a default judgment that
was rendered during a May 16, 2014 default judgment hearing in open court. Appellee
has never sought or received a judgment on facts or claims that the Appellant had not
previously admitted to by failing to answer the properly served original petition. The
amended petition contained no new claims or a more onerous burden than Appellant had
been previously served within Appellee’s original petition. Furthermore, the Appellee’s
amended petition, which was not filed until two weeks AFTER the judgment was
rendered, is not a proper part of this restricted appeal as it is not on the face of the record.
-7- Accordingly, because Appellant’s restricted appeal rests solely on the amended petition,
the appeal should be denied.
The restricted appeal should be denied for the following reasons:
1. The amended petition, on which Appellant bases this restricted appeal, was not
before the trial court judge and thus could not have been the basis of judgment
rendered on May 16, 2014.
2. The trial court’s final judgment specifically states his judgment is based on the
live pleading and evidence submitted at the May 16, 2014 hearing and not the May
30, 2014 amended petition. Thus, Appellant did admit liability on the claims on
which the trial court entered a default judgment.
3. The amended petition that forms the sole and entire basis of Appellant’s argument
is not properly before the First Court of Appeals “Restricted Appeal” as it was not
part of the face of the record on the date judgment was rendered, May 16, 2014.
4. The amended petition was not more onerous than the original petition that was
properly served on Appellant as it sought the same amount of relief under the
same causes of action in both. Furthermore, the non-suit of two co-Defendants,
who were in the course and scope of their employment for the defaulting
Defendant, was not more onerous.
5. Because the amended petition was not more onerous than the original petition that
was properly served, service of the amended petition was not required.
6. There is no error on the face of the record.
-8- ARGUMENT
Standard of Review
To prevail on a restricted appeal, an appellant must establish that: (1) it filed
notice of the restricted appeal within six months after the judgement was signed; (2) it
was a party to underlying lawsuit; (3) it did not participate in the hearing that resulted in
the judgment complained of and did not timely file any post judgement motions or
requests for findings of fact and conclusions of law; and (4) error is apparent on the face
of the record. Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004). A
restricted appeal affords an appellant the same scope of review as an ordinary appeal,
with the exception that error must appear on the face of the record. See Norman
Commc’ns v. Tex. Eastman Co., 955 S.W.2D 269,270 (Tex 1997) (per curiam) (emphasis
added). The “face of the record” in a restricted appeal consists of the papers on file with
the trial court when it rendered judgement. See General Elec. Co. v. Falcon Ridge
Apartments, 811 S.W. 2d 942, 944 (Tex. 1991).
ARGUMENT AND ANALYSIS
I. There is no error on the face of the record regarding the trial court’s granting of
Appellee’s motion for default judgment.
A. The Final Judgment is proper because AAMCO admitted liability on the claims
for which the trial court entered a default judgment.
Appellant’s first argument is based solely on presumptions that are not supported
by the record, that being that the default judgment was based on liability admitted by
-9- AAMCO in the amended petition. While Appellant argues that the final judgment is
based on the amended petition, nothing could be further from the truth. As the Justices
will see, the trial court rendered its judgment on May 16, 2014, two weeks prior to the
amended petition being filed, thus Appellant’s claim defies common sense. This in and of
itself precludes the grant of appellate relief, because the amended petition had nothing to
do with the default judgment.
A simple timeline of events reveal the problem with Appellant’s assertion that the
trial court relied on the amended petition to make its ruling. On May 16, 2014, the Court
heard testimony from James Bova based on the original petition that was the live
pleading at that time. (Appendix A) In that hearing on page 8 of the transcript, the trial
court judge rendered judgment for actual damages in the amount of $210,000.00 and an
additional punitive damage amount of $200,000.00. (App. A, pg. 8) This May 16, 2014
rendering was well before the amended petition was in front of the trial court judge, as it
was not filed until May 30, 2014. (CR 34)
Furthermore, the trial court’s judgment entered on June 9, 2014 was identical to
his findings in open court. (App. A, pg. 8 and CR 42) So, it is not as if the trial court had
changed its mind AFTER the amended petition was filed and altered the final judgment,
rather it is clear that the judge had made up his mind and rendered judgment prior to the
amended petition being filed. Clearly, the final judgment is NOT based on the amended
petition. Thus, Appellant’s assertion that the amended petition somehow unfairly
prejudiced its rights is without support. Most importantly, the default judgment was
-10- clearly based on the claims AAMCO had admitted liability on as of May 16, 2014, as that
was the only pleading on file when judgment was rendered.
Appellant attempts to float the notion that the mere filing of an amended petition
voids a subsequent default judgment by citing caselaw that is easily distinguished from
the instant facts. More specifically, Appellant argues that Appellee’s amended petition
voids the judgment of the trial court. Not so. Again, a simple review of the timeline for
this case reveals the problem with Appellant’s argument.
Appellee notes for the Court that none of the cases cited by Appellant, (Caprock
Construction Co. v. Guaranteed Floorcovering, Inc., 950 S.W.2d 203, 205 (Tex. App.-
Dallas 1997, no writ); Harris v. Shoults, 877 S.W.2d 854, 855 (Tex. App.- Fort Worth
1994, no writ); cf. Palomin v. Zarskey Lumber Co., 26 S.W.3d 690, 694 (Tex. App.-
Corpus Christi 2000, pet denied); cf Rose v. Rose, 117 S.W.3d 84, 91 (Tex. App.-Waco
2003, no pet.) (citing Palomin), have facts similar to the instant facts. That being that in
the underlying case the trial court had rendered judgment BEFORE the amended petition
was filed. The instant case is different than the aforementioned cases, wherein a default
was secured on new findings or claims or causes of action found in an amended petition
filed prior to the rendering of the default.
A thorough reading of Appellant’s caselaw shows the law on which it relies, also
assumes that the default judgments were improperly granted by courts that based their
judgments on the amended petition. Appellant even states on page 7 of its brief that “In
both Harris and Caprock, the Fort Worth and Dallas Courts of Appeals, respectively,
-11- held that a Defendant must be served the live petition upon which the default judgment
is based. Id. (emphasis added).
There is no analysis by Appellant in their brief regarding whether or not the trial
court in the instant case “based” its default judgment on the amended petition. The reality
is that the trial court could not have done so, as the final judgment was rendered two
weeks prior to the amended petition being filed.
So, the mention of the requirement that the default judgment be “based” on the
unserved amended petition by Appellant, but the void of any analysis of whether or not
the trial court “based” its judgment on the amended petition is telling. Given the problem
with proving this element, the failure of Appellant to address same is understandable.
i. The amended petition is not properly before this Court in this Restricted Appeal.
The “face of the record” in a restricted appeal consists of the papers on file when
the trial court rendered judgment. See General Elec. Co. v. Falcon Ridge Apartments,
811 S.W.2d 942, 944 (Tex. 1991). Documents on file at the time of the judgment
determine the face of the record. Laas v. Williamson, 156 S.W.3d 854, 857 (Tex. App.-
Beaumont 2005, no pet.) As this Court will see, the face of the record for this case are the
papers on file on May 16, 2014 and not what was filed two weeks after the judgment was
rendered. Thus, the amended petition on which Appellant bases all of its arguments is not
properly before this Court. Appellee reminds the Court that the amended petition is the
singular issue on which Appellant bases their restricted appeal, because there is no legal
basis for Appellant’s claim. Appellant’s claim must be denied.
-12- ii. The trial court rendered its opinion on May 16, 2014 - not June 9, 2014 as
Appellant misapprehends.
“Rendition” is a present act that resolves the issues on which a ruling is made.
Reese v. Piperi, 534 S.W.2d 329, 330 (Tex.1976). A judgment is rendered when the court
makes an official announcement-either orally in open court or by written memorandum
filed with the clerk of its decision on the matter submitted for adjudication. S&A Rest.
Corp. v. Leal, 892 S.W.2d 855, 857 (Tex.1995). When the trial judge makes an oral
announcement of a judgment in open court, the act of signing the judgments is only a
ministerial act. In re Bland, 960 S.W.2d 123, 124 (Tex. App.-Houston [1st Dist.] 1997,
orig. proceeding).
The rendition of a judgment is the critical moment when the judgment becomes
effective. See Verret v. Verret, 570 S.W.2d 138, 139-40 (Tex. App.-Houston [1st Dist.]
1978, no writ). Clearly, the Appellant has confused the act of rendering judgment and the
ministerial act of signing a judgment. As has been clearly established, the amended
petition was filed two weeks after the final judgment was rendered. (CR 42) The black
letter of the law can be no clearer. Not only does common sense guided by a timeline of
the procedural events show this Court that the trial court did not base its decision on the
amended petition, the timeline of events also precludes the amended petition from even
being considered by this Court, as it is not part of the “face of the record”.
B. Even if the amended petition was allowed to be part of the record of this
Restricted Appeal, (which caselaw precludes), and even if the trial court
based its May 16, 2014 rendition of judgment on the amended petition that
-13- was filed two weeks later, service of the amended petition was not required as
the relief sought therein was not more onerous than that sought in the
original petition.
Appellant argues the judgment is invalid as the amended petition creates a more
“onerous burden” on the Appellant and that the default is void as Appellant’s answer was
not yet due. This issue is easily disposed of based on the argument above in that the final
judgment was rendered long before the supposedly more onerous burden had been placed
on the Appellant. Accordingly, this “onerous burden” argument does not equal an error
requiring this Court’s intervention.
Nevertheless, the analysis of whether or not the amended petition is more onerous
reveals an answer in the negative. In fact, the representations made by the Appellant on
this issue to the Court in this regard are troubling.
i. The maximum relief sought does not create a more onerous burden.
Appellant attempts to claim on page 13 of its brief that the amended petition
doubled the maximum recovery sought from $1,000,000.00 to $2,000,000.00, creating a
more onerous burden. Notwithstanding the fact that the award was for $410,000.00
(proving further that the judgment was not “based” on the amended petition), this claim is
without any factual support as the maximum recovery sought in both petitions was
$2,000,000.00. (CR 9 and 39) The only time $1,000,000.00 was mentioned by Appellee
was while the evidence was presented at the default hearing, wherein Appellee’s attorney
asked Appellee if he was seeking $1,000,000.00. (App. A, pg. 17, ln. 12) In no way does
this change the relief that was sought based on the pleadings, as both petitions sought
-14- identical amounts. So, the fact that $2,000,000.00 was pled in both the amended petition
and original petition, cannot create a more onerous burden. Appellee reminds the Court
that the issue regarding determining whether a petition was more onerous is whether the
amended petition is more onerous than the original the defendant was served with – not
that the amended petition is more onerous than a Plaintiff’s testimony at a default
hearing.
ii. Amending the petition which has the effect of nonsuiting two co-Defendants does
not create a more onerous burden.
The Appellant also argues on page 12 of its brief that by filing the amended
petition without two previously named defendants, a more onerous burden was created.
This argument is also without support.
When a Plaintiff originally seeks judgment against several Defendants based upon
joint and several liability, a judgment sought against one was not more onerous after the
nonsuit than before the nonsuit. See McKernan v. Riverside National Bank, N.A., 858
S.W.2d 613 (Tex. App.-Fort Worth 1993). This case addresses and overrules Appellant’s
argument at the bottom of page 12 of its brief where it states “…the First Amended
Petition seeks a more “onerous judgment” against AAMCO by dismissing AAMCO’s
jointly liable co-Defendants…” Accordingly, the amended petition non-suiting two of
Appellant’s co-Defendants, who were in the course and scope of their employment with
AAMCO, does not create a more onerous burden.
iii. No new causes of action or new respondeat superior claims were added in the
amended petition.
-15- Not only does caselaw hold that nonsuiting a co-Defendant does not create a more
onerous burden, the claims against Appellant in Appellee’s original petition were that
Appellee was vicariously liable due to their negligence regarding those they hired to
supervise Appellee. Because respondeat superior was always the crux of Appellee’s
claims and Appellant’s liability has always been centered on their negligent conduct in
the way they managed their supervisors (Johnson and Clark), the default judgment was
based on admissions Appellant made regarding their liability stemming from the original
petition – not the amended petition. Regardless, the claims of Mr. Bova in both petitions
were that Appellant was liable for Appellee’s injuries as Mike Johnson and Brandon
Clark were employees of Appellant, working in the course and scope of their
employment at the time of the bad acts. In fact, several excerpts from Appellee’s original
petition and amended petition are identical and are as follows:
4.3 The next day Defendant Johnson, acting in the course and scope of his employment, filed a police report claiming that Plaintiff had stolen and used a company credit card and that Plaintiff had stolen an automotive lift and sold it.
4.4 Despite Plaintiff advising Defendant Johnson via email that he had not used the company credit card and that he was going to destroy it Johnson in concert with Defendant Clark acting in the course and scope of their employment filed a felony theft police report against Plaintiff. Additionally, both Defendants again acting in the course and scope of their employment told the employees and customers at the Aamco location on Chimney Rock that Plaintiff was a thief and that they had filed felony charges against him. (CR 4-5 and 35)
Clearly, respondeat superior was a claim “in play” based on Appellee’s original
petition, which Appellant was served with over four months prior to the default being
granted. Furthermore, there were no new causes of actions pled in the amended petition,
-16- as the causes of action pled in both petitions were ONLY requests for relief under the
theories of intentional infliction of emotional distress, negligence, gross negligence, and
defamation. Thus, the caselaw cited by Appellant where a restricted appeal was granted
because new causes of action were pled is a red herring and inapplicable here.
So, while Appellant argues the amended petition was more onerous – it was not. It
did not plead a maximum recovery that was greater than what had been originally pled.
The amended petition did not add a new cause of action under respondeat superior as
Appellant has represented. For these reasons, plus the fact that the amended petition was
not in front of the trial court at the time judgment was rendered as is required by General
Electric, the amended petition is not more onerous as a matter of law.
C. There was no requirement that the amended petition be served on Appellant,
as it was not more onerous.
As is well settled, service of an amended petition is only required to be served on
the Defendant for the purposes of a default judgment where the live pleading contains a
more onerous judgment. Palomin, 26 S.W.3d at 694; Rose 117 S.W.3d at 91. As is set
forth above, the amended petition did not seek an amount of money greater than that
sought in the original petition and in fact, the amount sought was identical. This is true,
save and except for two less Defendants. As discussed above, their dismissal did not
create a more onerous burden on Appellant than had already been established by the trial
court’s May 16, 2014 hearing and it’s rendering of a final judgment. Because the
-17- amended petition was not more onerous, service of the petition (filed after the judgment
was rendered) was not required.
D. The judgment is not void because it was rendered before AAMCO’s answer
was due.
Again, Appellant misapprehends the distinction between the judgment being
rendered and the judgment being signed. The Appellant relies on caselaw that is easily
distinguished. The Plaintiff in Mushroom Sales v. Weenick, 851 S.W.2d 346, 350 (Tex.
App.-Dallas 1993, writ denied) added more causes of action prior to its default judgment.
First, there were no new causes of action plead here as Bova only requested relief under
intentional infliction of emotional distress, negligence, gross negligence, defamation in
both petitions. Nothing more or less was sought in the amended petition. An even more
important distinction is that the amended petition in the instant case was filed AFTER the
default hearing was held and judgment rendered. This was not the case in Mushroom
Sales.
The default judgment was rendered only on the original petition to which
AAMCO admitted liability. To claim otherwise is not based on the facts or law, but on
trying to create an issue not supported by the record. As recited in the relevant procedural
background, Appellant’s answer to Appellee’s original petition was due on February 3,
2014. The trial court rendered judgment on this matter on May 16, 2014 – two weeks
before the amended petition was filed. No judgment was sought against Appellant after
-18- this amended petition was filed nor was the default judgment based on the amended
petition.
CONCLUSION
In summary, the failure of Appellant to appreciate the definition of “rendering” a
judgment is fatal to its appeal and the black letter law can be no clearer. “The face of the
record” in a restricted appeal consists of the papers on file when the trial court rendered
judgment.” As stated in General Elec. Co. at 911. The amended petition which Appellant
relies solely on is not a part of the record in this matter as it was filed two weeks after
judgment was rendered. Thus, the sole reliance on the amended petition as justifying a
reversal of the trial court’s final judgment fails.
While the judgment was signed on June 9, 2014, there is no question that
judgment was rendered on May 16, 2014 in open court. On that day, the trial court
rendered judgment in favor of Plaintiff for $410,000.00. The language written in the June
9, 2014 judgment recites that the judgment was the result of a May 16, 2014 hearing. On
May 16, 2014, the face of the record consisted of Appellee’s original petition only.
Clearly, the amended petition (that had not yet been filed) was not the basis of the trial
court’s judgment as was a factor in Caprock. So, not only is the amended petition not
properly before this Court in this Restricted Appeal, it was clearly not the basis of the
trial court’s judgment that was rendered two weeks before it was filed. For these reasons
alone, Appellant’s appeal should be denied.
Furthermore, the amended petition, if made a part of the record, is not more
onerous as is the requirement in order to compel a Plaintiff to re-serve the petition. Even
-19- if the trial court did have the ability to look into the future to see what Appellee would be
filing in two weeks and render judgment accordingly, there is no evidence that the
amended petition was more onerous on its face. The amended petition did not increase
the maximum recovery sought, as the maximum relief sought in both petitions was
$2,000,000.00. Appellee’s pleadings did not contain different causes of action, as both
petitions contained the causes of action of intentional infliction of emotional distress,
negligence, gross negligence, and defamation. The amended petition did not add claims
for respondeat superior or other causes of action. In fact, the only difference that
Appellant can point out as a difference between the original petition and amended
petition, is that Appellee used the magic words regarding Appellant’s co-Defendants
being “within the course and scope” four times instead of three times. The fact that
Appellee pled course and scope at least once in Appellee’s original petition puts the issue
in play and thereby did not create a more onerous burden on Appellant. Is this Court to
believe that Appellant had no idea Appellee was claiming the co-Defendants were within
the course and scope because the claim was only made three times in the original petition
versus four times in the amended petition? There was no question in either petition that
the claims against Appellant were based on AAMCO’s inability to properly manage the
leadership team. Since the amended petition is not more onerous, Appellant’s
protestations on this issue are without merit.
PRAYER
For these reasons, Appellee asks this Court to deny this appeal and to affirm the
trial court’s judgment.
-20- Respectfully submitted:
MESTEMAKER, STRAUB & ZUMWALT
/s/ David K. Mestemaker By:________________________________ David K. Mestemaker dkm@msandz.com TBN 13974600 FBN 14410 3100 Timmons Lane, Suite 455 Houston, Texas 77027 (713) 626-8900 Telephone (713) 626-8910 Telecopier
ATTORNEY FOR APPELLEE
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument was served on:
L. Bradley Hancock hancockl@gtlaw.com Matthew L. Simmons simmonsm@gtlaw.com Greenberg Traurig, LLP 1000 Louisiana, Suite 1700 Houston, Texas 77002
In compliance with Rule 9.5 of the Texas Rules of Appellate Procedure, on this th 29 day of May, 2015.
/s/ David K. Mestemaker ______________________ David K. Mestemaker
-21- CERTIFICATION
I hereby certify that I have reviewed this responsive document and have concluded that every factual statement in same is supported by competent evidence included in the appendix or record.
/s/ David K. Mestemaker ______________________ David K. Mestemaker
CERTIFICATE OF COMPLIANCE
I hereby certify that pursuant to the word count functionality included in Microsoft Office Home and Business 2013, the responsive document contains 3,710 words, excluding the caption, the identity of parties and counsel, the table of contents, the index of authorities, the statement of the case, relevant procedural background, the issues presented, the statement of facts, the prayer, the signature, the certificate of service, the certification, the certificate of compliance, and the appendix.
/s/ David K. Mestemaker ______________________ David K. Mestemaker
-22- APPENDIX
Please refer to the reporter’s record previously filed with Appellant’s brief. If required by the Court, Appellee will provide an additional copy immediately upon request.
-23-