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Click here for the full text of this decision FACTS:Cathie and Thomas Smith married in 1976. On June 12, 2006, Cathie filed her Original Petition for Divorce. The record does not show that Cathie served the petition on Thomas or that, with respect to the original petition, he executed a waiver of citation. On June 26, 2006, Cathie filed her First Amended Petition, and on that same date, Thomas executed a waiver of service as reflected by the waiver on file in the court’s records. The waiver recited that Thomas was provided a copy of the first amended petition, that he waived issuance of service of citation and that he entered his “appearance in this case for all purposes.” On Sept. 19, 2006, Cathie filed her Second Amended Petition. The certificate of service accompanying this petition stated that a “copy of the foregoing [had] been forwarded to [an attorney and his address] in accordance with the Texas Rules of Civil Procedure on September 13, 2006.” The record further reflected that Cathie did not attempt to perfect service of her second amended petition on Thomas by means other than serving Thomas’ putative agent. Cathie’s second amended petition varied considerably from her first amended petition. In her first amended petition, Cathie sought a no-fault divorce. In her second amended petition, Cathie alleged that Thomas was guilty of cruel treatment. Cathie’s first amended petition requested that the trial court make a just and fair division of the estate; Cathie’s second amended petition requested a disproportionate share of the estate on 19 specific grounds, none of which were alleged in the first amended petition. In addition, the first amended petition was silent with respect to any claims for post-divorce maintenance; the second amended petition sought an award of post-divorce maintenance for a reasonable period. In the first amended petition, Cathie made no claim for damages for assault or intentional infliction of emotional distress; the second amended petition asserted such claims and included damage allegations for past and future medical expenses, lost earning capacity, physical pain and mental anguish, disfigurement, and physical impairment. Finally, Cathie’s first amended petition asserted no claim for attorneys’ fees or punitive damages; her second amended petition sought both. The trial court, apparently without notifying Thomas, heard the case on Oct. 6, 2006. Thomas did not appear at trial. The trial court granted the divorce and found Thomas guilty of adultery and cruel treatment. Among other property, the trial court awarded Cathie the house but ordered Thomas to pay the remaining mortgage. The divorce decree also awarded Cathie maintenance in the sum of $2,100 per month. The trial court, however, did not find Thomas liable for assault or intentional infliction of emotional distress, and it did not award any punitive damages. Additionally, the trial court required the parties to pay their own attorneys’ fees. Thomas asserted that the trial court awarded Cathie substantially all of their community property. Thus, while the trial court did not give Cathie relief on all of the new claims first asserted in her second amended petition, the relief the court awarded exceeded that available to her under the allegations of her first amended petition. Through counsel, Thomas filed a motion for a new trial on Oct. 25, 2006. At the hearing on the motion, conducted on Dec. 13, 2006, Thomas testified that he was not aware that Cathie filed a Second Amended Petition. Cathie responded that she served Thomas’ authorized agent with her second amended petition and contended that she was entitled to serve the agent, because Thomas executed a waiver of service and subsequently retained an attorney. Cathie asserted that Thomas’ signed waiver constituted an appearance and that when Thomas subsequently hired an attorney (the putative agent), the Texas Rules of Civil Procedure allowed her to notify Thomas of her amended pleading by mailing it to his putative agent. Thomas, on the other hand, asserted that: his signature on the waiver of citation was forged, that Cathie never mailed the second amended petition to him, and that the attorney to whom Cathie mailed the second amended petition was not his authorized agent. In his motion for a new trial, Thomas asserted that the “granting of a new trial would not injure the opposing party in this cause.” HOLDING:Reversed and remanded. Cathie, the court stated, contended that she met the requirements of Texas Rule of Civil Procedure 21a by mailing the second amended petition to Thomas’ attorney of record. An attorney, the court stated, may become an attorney of record for the purpose of Rule 21a by filing pleadings or appearing in open court on a party’s behalf. There is no indication in the clerk’s record, the court stated, that the attorney filed an answer or appeared in open court on Thomas’ behalf nor did evidence presented during the hearing on the motion for new trial demonstrate that the attorney became Thomas’ authorized agent to accept pleadings filed on his behalf. Thus, the court concluded that the attorney did not become Thomas’ attorney of record as contemplated by the Texas Rules of Civil Procedure. Cathie further argued that hiring an attorney for a limited purpose, even if the attorney does not file an answer or make an appearance in open court, creates a presumption that the client vested the attorney with the authority to accept service of amended pleadings. The court found, however, that the evidence at the hearing indicated that Thomas consulted with the attorney about obtaining advice on a prospective divorce decree; it did not show that Thomas obtained advice on the decree signed by the trial court or that he authorized the attorney to appear and represent him in the divorce. Whatever the nature of Thomas’ relationship with the attorney, the court found no evidence that it extended to appearing in court, filing an answer in the divorce proceedings or acting as Thomas’ authorized agent for purposes of receiving service of amended pleadings. In addition, because Thomas complained in his motion for new trial about the notice he received of the amended pleading and then presented an argument through counsel that he had not waived his right to require compliance with the rules, the court disagreed that Thomas failed to preserve his complaint for appeal. Finally, addressing Cathie’s claim that Thomas had actual notice of her second amended petition, the court concluded that even had Thomas become aware that Cathie attempted service by sending a copy of her amended petition to his putative agent before the hearing, Thomas was, nevertheless, entitled to insist upon proper service as required by the Texas Rules of Civil Procedure. Finding nothing in the record to demonstrate that a new trial would injure Cathie, the court concluded that Thomas met the requirements to show that he was entitled to a new trial. OPINION:Horton, J.; Gaultney, Kreger and Horton, JJ.

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