CAUSE NO. 01-14-00974- CV

In The Court of Appeals For The 1 st District of Texas

________________________________________ AAMCO TRANSMISSIONS, INC. Appellant ,

v. JAMES A. BOVA Appellee

.

________________________________________ On Appea l from the 113 th 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 ACCEPTED 01-14-00974-cv FIRST COURT OF APPEALS

HOUSTON, TEXAS 5/29/2015 3:58:55 PM CHRISTOPHER PRINE

CLERK- 2

- IDENTITY OF PARTIES AND COUNSEL Appellant L. Bradley Hancock hancockl@gtlaw.com Matthew L

. Simmons simmonsm@gtlaw.com Greenberg Traurig, LLP 1 0 00 Louisiana , Suite 1700 Houston, Texas 77002 Telephone: (713) 374

- 3500 Facsimile: (713) 374

- 3505 Appellant and T

rial C ounsel for AAMCO TRANSMISSIONS, INC

. Ap pellee 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 T

rial C ounsel for JAMES BOVA

.- 3

- Table of Contents Identity of Parti es and Counsel ................................ ................................ ............ 2
Index of Authorities ................................ ................................ ............................... 5 Statement of Case ................................ ................................ ................................ ... 6 Relevant Procedural Background ................................ ................................ ......... 6
Issue s 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 th e 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 so ught 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 onero us burden.........................15- 4

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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 ................................ ................................ ................................ ............. 1 9 Prayer ................................ ................................ ................................ .................... 20 Certificate of Service ................................ ................................ ............................ 2 1 Certific ation ................................ ................................ ................................ .......... 2 2 Certificate of Compliance ................................ ................................ .................... 2 2 Appendix ................................ ................................ ................................ ................ 2 3- 5

- 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 (T ex. App.

- Dallas 1997, no writ)........................... 11, 19 General Elec. Co. v. Falcon Ridge Apartments 811 S.W. 2d 942, 94 4 (Tex. 199 1)..........................................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 [1 st D ist.] 1997, orig. proceeding)..... 13 Laas v. Williamson 156 S.W.3d 85 4, 857 (Tex. App.

- Beaumont 2005, no pet.)

........................... 1 2 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)

....................... . . . . . 1 8 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 de nied ) cf

... . ...... . 11, 17 Reese v. Piperi 534 S. W.2d 329, 330 (Tex.1976)......................................................... 1 3 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. Ap p. - Houston [1 st Dist.] 1978, no writ)...

.......... 1 3- 6

- 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 , 113 th Judicial District Court, Harris County, Texas Trial Court’s Disposition : Defau l t Judgment in favor of Plaintiff

.

RELEVANT PROCEDURAL BACKGROUND On December 30, 2013, Appe llee filed h is 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 aga inst Ap pellant 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.- 7

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4. Whether the First Amended Petition is more “onerous” , thereby requiring service on Appellant

.

STATEMENT OF FACTS To the Honorable Justices of t he First Court of Appeals: On December 30, 2013, Appellee filed h is 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 aga inst 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 petit ion on May 30, 2014. (CR 34

- 40) A judgm ent (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 defau lt 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 claim s or a more onerous burden than Appellant had been previously served with in Appellee’s original petition. Furthermore, the Appellee’s amended p etition, which was not filed until two weeks AFTER the judgment was rendered, is not a proper part of this restri cted appeal as it is not on the face of the record

.- 8

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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 bas e s 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 plea ding and evidence submitted at the May 16, 2014 hearing and not the May 30, 2014 amended petition

. T hus , Appellant did admit liability on the claims on which the trial cou rt entered a default judgment

. 3. The amended petition that forms the sole and entire ba sis 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 peti tion 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, wa s 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.- 9

- 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 he aring that resulted in

t he judg ment 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

res tricted 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) . T he “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 th e 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 argume nt is based solely on presumptions that are not supported by the record , that being that the default judgment was based on liability admitted by- 10

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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 1 6, 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 p etition 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 prejudice d its rights is without support. Most importantly, the default judgment was- 11

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clearly ba sed 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 no tion 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 f or this case reveals the problem with Appellant’s argument. Appellee notes for the Court that n one 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. A pp. - Corpus Christi 2000, pet den ied) ; 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 f iled. The instant case is different than the aforeme ntioned 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 t hat 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,- 12

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held t hat a D efendant must be served the live petition upon which the default judgment
is based

. Id. (emphasis added).
T here is no analysis by Appellant in their brief regarding whether or not the trial court in the instant case “based” its default judgment on t he amended petition. The reality
is that the trial court could not have done so , as the final judgment was rendered two weeks prior to t he 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, t he 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
pa pers 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 base s all of its arguments is not properly before th is 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.- 13

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ii. The trial court rendered its opinion on May 16, 2014

- not June 9, 2014 as Appellant misapprehe nds. “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 memorandu m 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 [1 st 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.

- Ho uston [1 st Dist.] 1978, no writ). Clearly, the Appellant has confused the act of rendering judgment and the ministerial act of signing a judgment . A s has been clearly established, the amended petition was filed two weeks after the final judgment was render ed. (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 preclude s 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 tria l court based its May 16, 2014 rendition of judgment on the amended petition that- 14

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was filed two weeks later, service of the amended petition was not required as
the relief sought therein was n ot more onerous than that sought in the original petition. Appe llant 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 th e amende d petition is more onerous
reveal s an answer in the negative . In fact, the representations made by the Appellant on this issue to the Cou rt in this regard are troubling.
i. The maximum relief sought does not create a more onerous burden

. Appellant att empts 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 t he 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 t he 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- 15

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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 p etition is more onerous than the original the defend ant was served with

– not that t he amended petition is more onerous than a P laintiff’s testimony at a default hearing.
ii. Amending the petition which has the effect of nonsuiting two co

- Defendants does

not c reate 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 P laintiff origina lly seeks judgment against several D efendants 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.

- For t Worth 1993). This case addresses and overrules Appellant’s argument at the bot tom 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...” Acco rdingl y, 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

.- 16

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Not only does caselaw hold that nonsuiting a co - D efendant does not create a more

onerous burden, the claims against App ellant in Appellee’s original petition were that Appellee was vicariously liable due to the ir negligence regarding thos e they hired to supervise Appellee

. Because respondeat s uperior 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 s upervisors (Johnson and Clark), the defaul t judgment was based on admissions Appellant made regarding their liability stemming from the original petition

– not the amended petition. Regardless, t he claims of Mr. Bova in both petitions

w ere 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 T he 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 ad vising 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 Plaint iff. 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 3 5 ) 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 petitio n ,- 17

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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 inapplicabl e 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 pl ed.
T he amended petition did not add a new cause of action under respondeat superior as Appellant has represented. F or 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 requir ed 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 requi red to be served on
the D efendant 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 i dentical. This is true, save and except for two less D efendants. As discussed above, their dismissal did not create a more onerous burden on Appellant than had already b een established by the trial court’s May 16, 2014 hearing and it’s rendering of a final judgment

. Because the- 18

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amended petition was not more onerous, service of the petition (filed afte r 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 P laintiff in Mushr oom 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 emo tional 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 wa s hel d 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 issu e 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- 19

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this amended petition was filed n or 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 l etter 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 petitio n 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 pe tition as justifying a reversal of the trial court’s final judgment fails.
While t he 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 r ecites 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 ju dgment 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, Appel lant’s appeal should be denied

. Furthermore, the amended petition, if made a part of the record, is not more
onerous as is the re quirement in order to compel a P laintiff to re

- serve the petition. Even- 20

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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 re covery sought , as the maximum relief sought in both petitions was $2,00 0,000.00. Appellee’s pleadings did not contain different cause s 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 m agic 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 crea te 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 th e amended petition ? There was no question in either petition that the claims again st 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 ask s this Court to deny this appeal and to affirm the trial court’s judgment

.- 21

- 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 770 27 (713) 626

- 8900 Telephone (713) 626

- 8910 Telecopier
ATT ORNEY FOR APPELLEE

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the for egoing instrument was served on: L. Bradley Hancock hancockl@gtlaw.com Matthew L. Simmons simmonsm@gtlaw.com Greenberg Traurig, LLP 1 0 00 Louisiana , Suite 1700 Houston, Texas 77002
I n complia nce with Rule 9.5 of the Texas R ules of Appellate Procedure , on this 29 th day of May , 201 5

. /s/ David K. Mestemaker

______________________ David K. Mestemaker- 22

- CERTIFICATION I hereby certify that I have reviewed this responsive document and have concluded that every factual statement in same is supported by competent evide nce 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 resp onsive document contains 3 , 710 words, excluding the caption, the identity of parties and counsel, the table of contents, the index of authorities, the stateme nt of the case, relevant procedural ba ck ground , 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- 23

- APPENDIX Please refer to the reporter ’ s record p reviousl y filed with Appellant ’ s brief

. If r equired by the Court, Appellee will provide a n additional copy immediately upon request.