### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00537- CV

Carol J. Calderoni, Appellant

v. Moses Vasquez, A ppellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 353 RD JUDICI AL DISTRICT NO. D-1 -GN-0 5-0 0189 5, H ONO RAB LE TIM SULAK , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

This is a restric ted appea l from a no-answe r defa ult judgme nt awa

rding unliquidated damag es. Appellant Carol J

. Calderoni, defe ndant below, bring s three issues urg ing reve rsal of the judgme nt on the g rounds that (1) the live petition of the plaintiff below, a ppellee Moses Vasque z, failed to state any cause of action that would establish her liability to him; (2) the rec ord contains no evidenc e that would support the unliquidated damag es awa rd; and (3) Vasque z failed to comply with the aff idavit require ments of the Service members Civil Relief Act befor e taking the defa ult. We will

reve rse the judg ment in its entirety and re mand.

BACK GR OUND We take our summary of the un d er ly ing fac ts from Vasque z’s live petition, taken

as true in lig ht of Calderoni’s defa ult. See M

organ v. Compugraphic Corp. , 675 S.W .2d 729, 732 (Tex. 1984). Vasque z owned four c ontiguous lots in South Austin. His residenc e was located onthe two lots in the middle (6 and 7), while the outer two lots (5 and 8) wer e larg ely unimproved. At

rele vant times, Vasque z “wa s 81 y ear s old, in poor health,” had “fa iling ey esig ht,” and “questionable mental acuity” to such an extent that he later beca me the subject of a g uardia nship proce eding in the Travis County

probate court. I n April 2005, Vasque z was approa ched by two individuals—Cedrick E. L oera , with whom Vasque z “had a close and long term rela tionship ,” and J oseph Calderoni, a licensed rea l-estate broker who employ ed L oera , and whom L oera “broug ht by to meet [Vasquez] in order to discuss the sale of [Vasquez’s] rea l estate.” Whil e Vasque z did not desire to sell his house, he ag ree d to sell the two outer lots (5 and 8) to J oseph for $120,000 eac h. J oseph undertook to draf t what Vasque z 1 thought would be “the ne cessa ry paper work” to effe ctuate tha t transac tion. As it turned o u t , J oseph draf ted, and Vasque z executed, documents that not only transfe rre d the two out er l o t s Va s quez had ag ree d to sell, but also the two middle lots (6 and 7), along with a ten-y ear lease of the house that would terminate with Vasque z’s death. I n exchang e for lots 6 and 7, J oseph g ave Vasque z a note for $200,000—which Vasque z contends is a fra ction of its fair marke t value—but ultimately deede d those lots back to Vasque z without making any pay ments. As for the other lots, J oseph paid Vasq u ez $40,000 for lot 5 and $45,000 for lot 8, far less than the $120,000 eac h to which they had ag ree d. J oseph deede d lot 8 to himself, but deede d lot 5 to his mother, Carol Calder oni, appellant her e.

We use J oseph Calderoni’s first name to distinguish him from h i s mother, appellant 1 Carol Calderoni. 2Vasque z filed suit in May 2005, initially

asser ting c laims solely

ag ainst J oseph. I n Marc h 2006, Vasque z filed a seco n d a me n d e d p e tition joining L oera and Calderoni as co-de fenda nts. Vasque z soug ht money damage s , i n cluding sums repr esenting “the differ ence betwee n what Def endants paid Plaintiff for the proper t y and what the proper

ty is worth,” as well as exemplary damag es, attorne y ’s fe es, and r escission of the “ fra udulent sale.” A wee k l at er , Vasque z non-suited his claims ag ainst J oseph and L oera , leaving Calderoni as t he sole defe ndant. Thoug h Calderoni was serve d with citation, she never filed an

answe r. The case rema ined inactive for approximately five y ear s. I n the interim, a g uardi an was appointed for Vasque z, who fil ed a notice of appea ranc e in the case. On Ap ri l 6, 2011, Vasque z, throug h his g uardia

n, obtained a defa

ult judgme nt ag ainst Calderoni awa rding him $75,000, a sum expli citly “re prese nting the a

mount by which the sa le price ag ree d by Plaintiff for the sale of l ot 5 exceede d t h e am o u nt actua lly paid to Plaintiff for such lot.” I n Aug ust of that y ear , Calderoni broug ht this restricted appe al.

ANALYSIS

A restric ted appea l is a ty pe o f d i rec t attack on a defa ult judgme nt. See Tex. R. App. P. 30; Gene ral Elec. Co. v. Falcon Ridge Apartments, Joint Venture , 811 S.W .2d 942, 943 (Tex. 1991). As the party filing a restric ted appea l, Ca lderoni must show that: (1) she broug ht the appea l within six months afte r the trial court signe d the judgme nt; (2) she wa s a party to the suit; (3) she did not participa te i n the hear ing that resulted in the complained- of judgme nt and did not ti m el y file any postjudgment motions or reque sts for finding s of fac t and conclusions of law; and (4) erro r is appar ent from the fac e of the rec ord. See Tex. R. App. P. 26.1(c) , 30; Alexande r 3v. Lynda’s Boutique , 134 S.W .3d 845, 848 (Tex. 2004)

. Only the fourth element, whether err or is appar ent from the f

ace of the re cord, is in dispute here

. The rec ord, for purposes of a restric ted appea l, consists of the cler k’s rec ord and the repor ter’s rec ord if one was made, and also includes any evidenc e prese nted to the trial court befor e final judg ment. See Norman Commc’ns v. Texas East man Co. , 955 S.W .2d 269, 270 (Tex. 1997) (per curia m); Gene ral Elec ., 811 S.W .2d at 944 (“ The rule has long been tha t evidence not before the trial court prior to final judg ment may not be consider ed in a [restricted appea l] proce eding .”). Error must be appar ent fro m the fac e of the rec ord, not inferr ed from the rec ord. Gold v. Gold , 145 S.W .3d 212, 213 (Tex. 2005) (per curia m). The scope of our revie w is the same as in ordinary appea ls; that is, we revie w the entire case . Norman , 955 S.W .2d at 270. This includes evidentiar y sufficie ncy

claims. Id

. A plaintiff may take a defa ult judgme nt ag ainst a defe ndant if the defe ndant has not previously answe red, as long as the citation and return of service have been on file with the cler k for 10 day s. Tex. R. Civ. P. 107, 239. A no-answe r defa ult judgme nt is proper ly g rante d if (1) the plaintiff files a petition that states a cause of ac t i o n , (2 ) the petition invokes the trial court’s jurisdiction, (3) the petition g ives fair notice to the defe ndant, and (4) the petition does not disclose any invalidity of the claim on its fac e. Paramount Pipe & Supply Co. v. Muhr , 749 S.W .2d 491, 494 (Tex. 1988). When a no-answe r defa ult judgme nt is rende red, the defe ndant’s liability for all cause s of action pleade d is conclusively established and all alleg ations of fa ct set for th in the petit ion are deeme d admitted, except the amount of unliquidated damag es. Lucas v. Clark , 347 S.W .3d 800, 803 (Tex. App.—Austin 2011, pet. denied) (citing Dolgencorp of Tex., Inc. v. Lerma , 288 S.W .3d 922,

4930 (Tex. 2009) (per curia m)). Thus, if the fac ts set out in the petition alleg e a cause of action, the

defa ult judgme nt conclusively establishes the defe n d an t ’s liability

. Morgan , 675 S.W .2d at 731. Howeve r, when a defe ndant fa i l s t o fi l e an answe r and no liability exis ts ag ainst him as a matter of l aw o n t h e fa ct s alleg ed by the plaintiff, then the fac t that he has defa ulted by failing to file an answe r ca n n o t create liability

. Doubletree Hotels Corp. v. Person , 122 S.W .3d 917, 919 (Tex. App.—Corpus Christi 2003, no pet.).

I n her first issue, Calderoni urg es that the district court er re d i n re ndering a defa ult judgme nt not only

imposing liability , but also awa rding $75,000 in unliquidated damag es. She asser ts that the awa

rd is not supported by leg ally or fa ct u al l y sufficie nt evidenc e and that, indeed, the rec ord is de void of any testimony or other e vidence reg arding damag es. Vasque z

conce des this issue and that the d amag es awa rd must be reve rsed, althoug h he emphasizes that the err or would not impact the portion of the judgme nt imposing liability ag ainst Calderoni. We agr ee wi th the parties that, at a minimum , the damag es awa rd must be set aside, and sustain Calderoni’s f

irst issue. I n her second issu e, C al d eroni asser ts that Vasque z’s pleading s are insufficient to support the defa

ult judgme nt as to liability

. I n deter mining whether a cause of action was pled, the court must be ab l e, fr o m an examination of the plaintiff’s pleading s alone, to asce rtain with

rea sonable cer

tainty the elements of the p l ai n t i ff ’s cause of action and the relief soug ht with sufficie nt inf

ormation upon which to ba se a judgme nt. Stoner v. Thompson , 578 S.W .2d 679, 683 (Tex. 1979). Mere formalities, minor defe cts, and technica l insufficienc ies will not invalidate a defa ult judgme nt w here the petition states a cause of action and g ives “fa ir notice” to the opposing

5party of the relief soug ht. Id

. When deter mining whether a pleading proper ly includes an alleg ation,

we must look at the pleading from the perspe ctive of the person ag ainst whom the pleading is made. W ilson v. Bloys , 169 S.W .3d 364, 369 (Tex. App.—A u stin 2005, pet. denied) (citing Erisman

v. Thompson , 167 S.W .2d 731, 733 (Tex. 1943)). The purpose of a pleading is to provide the defe ndant with fair notice of the cause of action and char acte r of evidenc e that will be raised at trial. Fairdale Ltd. v. Sell er

s , 6 5 1 S

. W .2d 725, 725 (Tex. 1982); Caruso v. Krieger , 698 S.W .2d 760, 762 (Tex. App.—Austin 1985, no writ). This has the intended eff ect of defining the issues that will be hear d. Murray v. O & A Express, Inc ., 630 S.W .2d 633, 636 (T ex . 1 9 8 2 ) Fur thermore , when deter mining whether a cause of action has b ee n p l ed , we must be able to deter mine the elements of t he cause of action from the pl eading s al o ne. Sellers , 651 S.W .2d at 725. Howeve r, a petition is sufficie nt if a caus e o f ac t i o n may be rea sonably inferr ed from what is specific ally stated in the petition, even if an element of the action is not specific ally alleg ed. W al-Mart Stores, Inc. v. Its , 21 S.W .3d 456, 470-71 (Te x . App.—Austin 2000, pet. denied)

.

We have previously summarized the factual allega tions in Va s q u ez’s live petition. They focuse d exclusively on the conduct of J oseph, aided by L oera , in alleg edly seeking out Vasque z and tricking him into selling proper ty he never intended to sell and selling proper ty for a fra ction of its fair market value. J oseph and L oera wer e specifically identified as the ac tors and wr ong doers. The sole mention of Calderoni appea red in a para g raph discussing the transac tions involving lots 5 and 8. After an alleg ation that “De fenda nt J oseph Ca l d er o n i , wi t h the aid of Def endant L oera , also separ ately obtained from Plaintiff deeds to lots 5 and 8, for which he paid only $40,000.00 and

6$45,000.00 respe ctively , about a third of their marke t value,” Vasque z added, “L o t 8 J oseph

Calderoni had de eded to himself, a nd L ot 5 to his m other, Car ol Calderoni.” After pleading these fac tual alleg ations, Vasque z purported to plead the elements of three sets of liability theories: (1) debt and violations of chapte r 1101 of the occupations code, which

wer e pled solely ag ainst L oera and J oseph respe ctively ; (2) theories of common-law fra ud, statutory fra ud, and liability under the Texas Theft L iability Act predic ated on misrepre sentations and dece ption by unspecifie d “De fenda nts” in inducing Vasque z to enter into the transac tion; and (3) a theory of “conspira cy .” I n his pleading s reg arding conspirac y , Vasque z complained that “De fenda nt Cedrick E. L oera conspired with Def endant J oseph Calderoni to commit this fra ud on Plaintiff,” in “obtai n [ i n g] t he rea l proper ty

. . . from Plaintiff in a g rossly unfair manner ,” and in brea ching a fiduciar y duty L oera was alleg ed to owe to Vasque z. Then, in the sole expli cit ref ere nce to appellant any wher e in his pleading s of liability theories, Vasque z added, “De fenda nt Carol C al d er oni benef itted from these unfair acts by obtaining lot 5 at a price far below mark et v al u e. ” None of 2 these a lleg ations stated a c ause of action ag ainst Calderoni. The elements of a civil conspirac y include (1) two or more persons; (2) an object to be acc omplished; (3) a meeting of minds on the object or course of action; (4) one or more unlawful, overt acts; and (5) damag es as a proxi mate result. THPD, Inc. v. Cont’l I mports, I nc. , 260 S.W .3d 593, 604-05 (Tex. App.—Austin 2008, no pet.) (citing Massey v. Armco Steel Co. , 652 S.W .2d 932, 934 (Tex. 1983)). Proof of civil conspirac y

require s proof of “ damag es as the proxi mate result of

At the conclusion of Vasque z ’s “c o n s p irac y ” theory , he alleg ed also that L oera had 2 obtained larg e sums of money from him “play [i ng ] upon the intimate rela tionship he had with Plaintiff,” then re fusing to repa y them. 7the conspirac y .” Id

. The “g ist of a civil co n s p i ra cy ” is the injury that is intended to be cause d.

Schlumberge r W

ell Survey ing Corp. v. Nortex Oil & Gas Corp ., 435 S.W .2d 854, 856 (Tex. 1968). One “ca nnot ag ree , either expressly or tacitly , to the commission of a wrong which he knows not of.” Id

. at 857. Vasque z failed to alleg e a meeting of the minds amo n g C alder oni, J oseph, and L oera

as to either a wrong ful act or resulting harm. See id. (re ver s i n g co u rt of appea ls and aff irming trial court’s take- nothing judgme nt when evidenc e did not show knowledg e or intent to participa te in any wrong doing)

. Vasque z’s sole alleg ation ag ainst Calderoni—that Calderoni rec eived proper ty from J oseph—would not in its elf have been unlawful or proof of Calderoni’s involvement in any unlawful acts to bring about t hat result. Vasque z did not state a c ause of action ag ainst Calderoni for c onspiracy

. For simil ar rea sons, Vasque z’s relianc e on the proposition that “the parta king o f b en ef its of a fra

udulent transac tion makes the participa nts principals and liable as such,” i s misplaced. First State Bank of Miami v. Fathere e , 8 4 7 S.W .2d 391, 396 (Tex. App.—Amar illo 1993, writ denied) (citing Corpus Christ i Teachers Credit Union v. Hernande z , 814 S.W .2d 195, 2 0 2 (T ex . App.—San Antonio 1991, no writ)). I n Fatheree , there was evidenc e that the plaintif f

was actua lly involved in the fra udulent conduct. Id

. at 397 (noting plaintiff’s empl o y ee “cle arly understood” and participa ted in the fra udulent scheme ). Agai n , Vasque z alleg ed no actua l involvement by

Calderoni in any

fra udulent acts by

J oseph or L oera . Ho weve r, Vasque z sug g ests that it is enoug h that he pleade d the eleme n t s o f common-law fra

ud, statutory fra

ud, and violations of the Theft L iability Ac t aga i n st unspecifie d “De fenda nts.” We disag re e. Va s quez alleg es that “De fenda nts” committed common-law fra ud

8by “ma [ k i n g] a false repr esenta tion

. . . that [J oseph] Calderoni was purcha sing only unimproved lots from Plaintiff when i n ad d i t i o n Def endants actua lly had Plaintiff transfe r to Def endant J oseph C alder oni his house [ and]

. . . also misrepre sent ed the amount Plaintiff was being paid for his unimproved lots (5 and 8),” committed statutory fra ud by “ma[king] false repr esenta tions to him for the purpose of inducing him into this rea l estate transac tion,” and violated the theft liability act by “depr iv[ ing] Plaintiff of his proper ty by dece ption” and without his “ef fec tive consent.” Read in context with the specific fac tual alleg ations that prec eded these pleading s, we disag ree t h at these pleading s g ave fair notice to Calderoni that Vasque z was asser ting the liability theories ag ainst her, as opposed to her

co-de fenda

nts. I n reg ard to Vasque z’s alleg ations ag ainst “De fend an ts,” Quality Hardwoods, Inc.

v. Midwest Hardwood Corp. is instructive. No. 02-05-00311- CV, 20 0 7 W L 6 1 9 4 1 14, at *7 (Tex. App.—For

t Worth J une 28, 2007, no pet.) (mem. op.). I n that case , Quality agr ee d to

war ehouse and sell Midwest’s inventory to resolve a prior debt. Id

. at *1. Quality ’s reg istered ag ent Timothy Mills took a portion of Midwest’s inventory and used it to make cabine ts he installed in the home he share d with his wife Diane Mills. Id

. Eventually , Midwest sued Quality , Timothy Mills,

an d Diane Mills asser

ting theories of conver sion, fra ud, brea ch of fiduciar

y duty , and bre ac h o f contra ct. Id

. at *2. Following entry of a defa ult judgme nt ag ainst her, Diane Mills filed a restric ted appea l challeng ing her liability

. The court of appea ls conclude d t h at Midwest’s petition stated a claim ag ainst Diane Mills for co n v ersion beca use it included a fac tual alleg ation that Midwest’s inventory was “used by Def endants Timothy S. Mills and Diane Mills persona lly to make and install cabine ts in their home.” Id

. at *4. To the extent the petition lacke d other conver sion elements, the

9court conclude d they wer e not leg ally require d. Id

. Howeve r, the court of appea ls held t h at t he

petition failed to suff

iciently alleg e cla ims ag ainst Diane Mills for fr aud, bre ach of fiduciar y duty , or brea ch of contra ct. Id

. at *6-7. The fra ud claim contained only g ener al alleg ations that “the Def endants wil l fu l l y and fra udulently used or sold Plaintiff’s hardw oods without authority or Plaintiff’s knowledg e.” Diane Mills emphasized that the petition failed to alleg e th at s he made

a false repr esenta tion that she knew to be false. Id

. at *7. The court of ap p eals conclude d that Midwest’s petition did not sta te a ca use of a ction ag ainst Diane Mills for fra ud and, conseque ntly , that err or wa s appar ent on the fa ce of the re cord. Id

. We are persua ded by the analy sis in Midwest , which is consistent with the principle that pleading s must alleg e facts rather than conclusions. See, e.g. , Village Square, Ltd. v. Barton , 660 S.W .2d 556, 559 (Tex. Civ. App.—San Antonio 1983, writ ref ’d n.r.e.) (r eversing defa

ult judgme nt on DTPA claim when pleading s did “not in any way desig nate or state with pa rticularity which acts or events wer e relied upon as a basis for liability ” or “show that an y ac t o r ac t s o f the defe ndants wer e a pr oducing cause of an injury ”); C & H Transp. Co. v. W right , 396 S.W .2d 443, 446 (Tex. Civ. App.—Ty ler 1965, writ ref ’d n.r.e.) (re versing defa

ult judgme nt when alleg ation s amount ing to “pure ly leg al conclusion, without fac ts in support there of [were not] suffici en t t o support the judgme nt by defa ult”); see also Creedmoor-M aha W ater Supply Corp. v. Texas Comm’n

on Envtl. Quality , 307 S.W .3d 505, 525 (Tex. App.—Austin 2010, n o p et.) (in analog ous context of revie wing whether pleading s wer e sufficie nt to i n v o k e t ri al court’s jurisdiction, observing that “bar e conclusions

. . . are not sufficie nt—the pleade r must alleg e facts ”); Bloys , 169 S.W .3d at 369 (holding defa

ult judgme nt for failure to pay note not predic ated upon any finding s of alleg ations of

10fra

ud when petition lacke d any ref ere nces to fra

ud, misrepre sentations, o r simil ar conduct). And, absent any specific alleg ation o f wrong doing ag ainst Calderoni, or even that she ever had contac t

or comm unications with Vasque z, Vasque z’s g ener al alleg ations that unspecifie d “De fenda nts” defr auded him ar e, as in Midwest , insufficient standing alone.

Vasque z also urg es that a “totality of the circ umstances” analy si s o f h i s pleading s y ields t h e co n cl u s ion that those pleading s alleg ed fra ud by Calderoni. He arg ues that we applied such an analy sis in Vela v. Marywood , 1 7 S .W.3d 750, 760-61 (Tex. App.—Austin 2000, pet. denied)

. I n Vela , a plaintiff mother raised the aff irmative defe nse of fra

ud ag ainst a purported voluntary relinquishment of her pare ntal rig hts. Id

. at 760. Whil e we acknow ledg ed that fra ud “is

an elusive and shadowy term which has been define d in some case s as any cunning or artifice used to chea t or dece ive another ,” the evidenc e befor e the court clea rly demonstrated fra

udulent conduct

on the part of the defe ndant adoption ag ency . Id

. Specifica lly , (1) the ag ency , beca use of its specia l rela tionship with the mother, owed a duty of co m p l et e d i sclosure; (2) the ag ency either made misrepre sentations about the adoption proce ss that we re false or misleading or failed to disclose materia l fac ts; and (3) the m other was justified i n re l y ing on the age ncy ’s m isrepre sentations. Id

. at 761, 763-64. On those fac ts, we held, the plaintiff could maintain an aff irmative defe nse of fra

ud. Vela is inapposite in its posture and unhelpful to Vasque z on its fac ts. Be cause Vasque z’s petition lacks sufficie nt fac tual alleg ations to maintain a cause of action ag ainst Caldero n i , we sustain Calderoni’s se cond issue.

Calderoni sug g ests that the proper reme dy for the defe cts in Vasque z’s liability p l ea d i n gs i s rendition of judgme nt in her favor

. She invokes the principle that “incur able”

11pleading defe cts war ra n t re n d i tion beca

use rema nd and an opportunity to amend would serve

no leg itimate pur

pose. See Texas Parks & W ildlif e Dep’ t v

. E.E. Lowrey Realty, Ltd. , 235 S.W .3d 692, 694 (Tex. 2007) (dismi s s i n g claims when allowing responde nt to plead additional fac ts would not cure jurisdictional defe cts). We disag ree that Vasque z’s pleading s reve al i n cu ra ble defe cts, as opposed to the omission of fac tual alleg ations that, if they could be added in g ood faith, could cure the d ef

ec t s . Calderoni also appea rs to urg e more broadly that rendition is the proper reme dy without reg ard to whether the pleading defe cts are cura ble, citing a number of court of appe al s d ec i s i ons that reve rsed and rende red defa ult judgme nts. We note that some of these decisions involved incura ble pleading defe cts or evidenc e that neg ated essential elements of cause s of action or damag es, and are thus distinguishable. See, e.g. , Dave nport v. Scheble , 201 S.W .3d 188, 197 ( T e x. A

p p . — D a llas 2006, pet. denied) (re versing exemplary damag es awa rd in defa ult judgme nt p re m i s ed on leg ally unviable fra ud theory and rende ring take- nothing judgme nt); Texas Dep’ t o f Pub. Safety v. Six , 25 S.W .3d 368, 370 (Tex. App

. —For t Worth 2000, no pet.) (re versing and rende ring defa

ult judgme nt when judicial admissio n in pleading made satisfac tion of statutory conditions nece ssary to obtain relief impossibl e); Rodriguez v. USS of Tex., Inc. , No. 12-06-00398- C V, 2 0 0 7 W L 2 949643, at *3 (Tex. App.—Ty ler Oct. 11, 2007, no pet.) (mem. op.) (re versing defa ult judgme nt ag ainst alleg ed spouse for brea ch of contra ct and rende ring take- nothing judgme nt when evidenc e showed contra ct; (1) did not purport to an a g ree ment betwee n plaintiff and alleg ed spouse; (2) did not mention al l ege d spouse any wher e in body of contra ct; and (3) did not contain alleg ed spouse’s signa

ture). I n any event, we believe that the policies that the Texas Supreme Court has emphasized in Holt Atherton Indus. v. Heine , 835 S.W .2d 80, 86 (Tex. 1992), and its rec ent

12extension of Heine in Dolgencorp , 2 8 8 S

. W

. 3 d at 930, g uide us simil arly to opt for rema nd here g iven the “abbr eviated and perf unctory ” nature of defa

ult-judgme nt proce eding s, see id ., at least in the abse nce of

incura ble pleading defe cts. I n her third and fina l issue, Calderoni see ks relief from the defa ult judgme nt based

on what she asser

ts was Vasque z’s failure to comply with the the Service members Civil Relief Act. 50 App. U.S.C.A. § 521 (West 2008) (for merly cited as 50 App. U.S.C.A. § 520) (“ t he Act”)

. Be fore a court may enter judgme nt, the Act require s a plaintiff to file an aff idavit (1) stating whether

o r n o t t h e defe ndant i s in milit ary service and showing necessar y fac ts to support the affidavit; o r (2) if the plaintiff is unable to deter mine whether or not the defe ndant is in milit ary service , stating that the plaintiff is unable to make that deter mination. Id

. § 521(b) (1 ). The Act provides a court with authority to set aside a judgme nt enter ed ag ainst active duty service members. Id

. § 521(g )(1)

. The Act expli citly limit s relief to service members during their “per iod of milit ary service (or within 60 day s afte r termination of or rele ase from such mil i t ar y s ervic e)” and require s a showing that (1) the service member was materia lly aff ecte d by rea son of that milit ary service in making a defe nse t o the action; and (2) the service member has a meritorious or leg al defe nse to the action or s o m e part of it. Id

. This Court long ag o made clea r that a “def

ault judgme nt, taken without the aff idavit

or other require ments of [t he Ac t ] , is not there by rende red void, but mere ly voidable at the instance of the service man upon proper showing of prejudice and injury .” Mims Bros. v. N.A. Jame s, Inc. , 1 7 4 S

. W

. 2 d 276, 278 (Tex. Civ. App.—Austin 1943, writ ref ’d) (empha sis added)

. Calderoni has not shown that she is an active duty member of the milit ary service (or has l ef t t h e

13service within 60 day s), nor has she made any attem pt to make the require d additional showing

of prejudice and injury

. See Commercial Credit Corp. v. Smith , 187 S.W .2d 363, 368 (Tex. 1945) (deny i n g motion to reope n judgme nt when claimant offe red no proof of prejudice or injury as require d by the Act); Hawkins v. Hawkins , 999 S.W .2d 171, 174 (Tex. App.—Austin 1999, no pet.) (holding trial court did not abuse its discr etion by ref using to se t a side divorce decr ee based solely

on failure to comply with the Act; “[ b ] ec au se the protec tions of the Act are exclusively for the benef it of the service man, it is only upon his insistence that the judgme nt may be found to be invalid, and t h en o n l y u pon the proper showing of prejudice ”). Nor has Calderoni sug g ested that any noncompliance with the Act would entitl e her to rendition, as opposed to the r emand to which w e have a lrea dy

held her entitled. Acc ording ly , we ove rrule Ca lderoni’s third issue.

CONCLUSION W e h o l d t here is err or on the fac e of the rec ord beca use Vasque z’s petition does not contain sufficie nt fac tual alleg ations to state a ca u s e o f action ag ainst Calderoni, nor is there any evidenc e that could support an awa rd of unliquidated damag es if liability was established. We

reve rse the de fault judg ment in its entirety and re mand the ca

use for further proce eding s.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Reverse d and Remande d Filed: June 26, 2012

14