Opinion
No. 05-07-00843-CV
Opinion issued July 1, 2008.
On Appeal from the County Court at Law No. 2 Dallas County, Texas, Trial Court Cause No. CC-05-12865-B.
Before Justices WHITTINGTON, RICHTER, and MAZZANT.
MEMORANDUM OPINION
Appellants sued appellee, alleging that she did not pay the entire balance due for airline tickets she bought from them. After a bench trial, the trial judge signed a judgment ordering appellants to take nothing on their claims. Appellants raise two issues on appeal. We affirm.
I. Background
A. Facts
We draw this statement of facts from the trial court's findings of fact and conclusions of law. Appellant Hakim Mohamed does business as a travel agency under the name of Harrar Travel Tours. One of Mohamed's agents is a businessman named Yimer Ebabu. Under their business arrangement, customers would contact Ebabu for travel arrangements. He would obtain airline tickets from Mohamed, collect the payment from the customers, and deliver the airline tickets to the customers.
Mohamed and Harrar Travel and Tours are listed as separate parties in the style of the pleadings, judgment, and notice of appeal. But we note that the text of the original petition refers to the "Plaintiff" as "Hakim Mohamed d/b/ Harar [sic] Travel Tours." The judgment refers to the "Plaintiff" as "HAKIM MOHAMED, individually and doing business as HARRAR TRAVEL TOURS." The discrepancy has no bearing on our opinion. We will refer to Appellants herein as "Mohamed."
Appellee Tsege G. Adhanom is the wife of Teklu Gezahager. When Adhanom wanted to make a round trip to Ethiopia with her two children and another family member, Gezahager sought airline tickets from Ebabu. Ebabu secured a price for the four tickets from Mohamed in the amount of $4,139.25 and communicated that price to Gezahager. Gezahager directed Ebabu to obtain the tickets for the price quoted. Ebabu delivered the tickets and an itinerary to Gezahager, and Mohamed received and deposited Gezahager's check in the amount of $4,139.25. Adhanom and her three companions used the tickets to travel to Ethiopia.
About two months after Adhanom left for Ethiopia, Mohamed wrote a letter to Adhanom and Gezahager stating that the price should have been $5,834.50 and seeking to collect the difference of $1,695.25 from Adhanom and Gezahager. They refused to pay the sum demanded.
B. Procedural history
Mohamed sued Adhanom for the amount of $1,695.25, plus attorney's fees and interest. Adhanom answered with a general denial. Over a year later, Mohamed filed a document entitled "Petitioner's Supplemental Affidavit in Support of Original Petition" in which he swore to certain facts about the transaction. During the course of the litigation, Mohamed also filed a motion for summary judgment. Adhanom filed a response and attached her own affidavit denying the validity of Mohamed's claim. Our record contains no order ruling on the motion. The case was tried to the bench on March 19, 2007. After Mohamed testified, he asked the trial court to preclude Adhanom from calling any witnesses because Mohamed's suit was a suit on a sworn account and Adhanom had not filed a verified denial. Adhanom argued that the case was not a suit on sworn account. The trial judge overruled Mohamed's objection, subject to later reconsideration, and allowed Adhanom to present her evidence. After Adhanom presented her evidence, the trial judge reconsidered his ruling on Mohamed's objection. He sustained the objection but simultaneously granted Adhanom's request for leave to file an amended answer. That afternoon, Adhanom filed an amended answer that included a verified denial.
About two weeks after the trial, the trial judge signed a take-nothing judgment against Mohamed. He later signed findings of fact and conclusions of law in which he concluded that the parties, through their agents Ebabu and Gezahager, entered into a contract for the airline tickets for the price of $4,139.25. Because Mohamed had already received that amount in payment for the tickets, Adhanom owed Mohamed nothing.
Mohamed appealed.
II. Analysis
Mohamed raises two issues on appeal. In his first issue, he contends that his suit was a proper suit on sworn account under Texas Rule of Civil Procedure 185. In his second issue, he contends that the trial judge erred by allowing Adhanom to amend her pleadings to include a verified denial and to introduce evidence at trial. We overrule the second issue and conclude that we need not address the first.
Assuming that Mohamed properly pleaded a suit on sworn account, as we will for purposes of our analysis, rule 185 required Adhanom to file a written denial under oath as a prerequisite to denying the claim. Tex. R. Civ. P. 185; Panditi v. Apostle, 180 S.W.3d 924, 927 (Tex.App.-Dallas 2006, no pet.). During trial, Mohamed pointed out that Adhanom had no verified denial on file and objected to Adhanom's introducing any evidence. Adhanom then sought leave to amend her pleadings and add a verified denial, and the trial court granted her leave to do so. Texas Rule of Civil Procedure 66 provides, in pertinent part, as follows:
If evidence is objected to at the trial on the ground that it is not within the issues made by the pleading, or if during the trial any defect, fault or omission in a pleading, either of form or substance, is called to the attention of the court, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him in maintaining his action or defense upon the merits.
Tex. R. Civ. P. 66. "A court may not refuse a trial amendment unless (1) the opposing party presents evidence of surprise or prejudice, or (2) the amendment asserts a new cause of action or defense, and thus is prejudicial on its face." State Bar of Tex. v. Kilpatrick, 874 S.W.2d 656, 658 (Tex. 1994). The party opposing the trial amendment bears the burden of showing surprise or prejudice. Id.
Mohamed cannot meet the first prong of the Kilpatrick test. Although Mohamed objected that Adhanom's trial amendment was a surprise to him, he did not make any showing in support of his objection. Indeed, it is unlikely that Mohamed could have been surprised by Adhanom's defense because two and a half months before trial she denied any debt to Mohamed in an affidavit that she filed in opposition to Mohamed's motion for summary judgment. She also denied that she had failed to pay the full price of the airline tickets in her interrogatory answers.
Nor can Mohamed meet the second prong of the Kilpatrick test. In this regard, our decision in Smith Detective Agency Nightwatch Service, Inc. v. Stanley Smith Security, Inc., 938 S.W.2d 743 (Tex.App.-Dallas 1996, writ denied), is controlling. In that case, the plaintiff moved for judgment on the pleadings at the outset of the trial based on its sworn-account petition and the defendant's failure to file a verified denial. Id. at 746. The trial court denied the defendant's request for a trial amendment and granted the plaintiff's motion for judgment on the pleadings. Id. The defendant appealed, and one of the questions presented was whether the requested addition of a verified denial was prejudicial on its face. We held that an amendment is prejudicial on its face only if three requirements are met: (1) the amendment asserts new substantive matter that reshapes the nature of the trial itself, (2) the new matter is such that the opposing party could not have anticipated it in light of the development of the case up to the time the amendment was requested, and (3) the amendment would detrimentally affect the opposing party's presentation of its case. Id. at 749. Because none of these three requirements was supported by the record, the trial court had no discretion to deny the defendant's requested trial amendment, and we reversed the judgment. Id.
Applying the Smith Detective Agency analysis to this case, we reach the same result. In discovery and in her summary-judgment response, Adhanom consistently took the position that she had paid all the money that she owed to Mohamed. By adding a verified denial to support that position, Adhanom did not raise a new substantive defense. Rather, she merely complied with a procedural requirement imposed by rule 185. Under Smith Detective Agency, her trial amendment was not prejudicial on its face. Id. at 749-50; see also Chapin Chapin, Inc. v. Tex. Sand Gravel Co., Inc., 844 S.W.2d 664, 665 (Tex. 1992) (per curiam) (applying similar analysis to an amendment adding a verified denial proffered only six days before trial).
Because Adhanom's trial amendment was not prejudicial on its face and Mohamed did not show any surprise or prejudice, the trial court correctly granted leave for Adhanom to file her trial amendment over Mohamed's objection. We overrule Mohamed's second issue, which makes it unnecessary for us to address his first issue.
III. Conclusion
We affirm the judgment of the trial court.