Id.; see TEX. R. CIV. P. 166a(c) (providing that the trial court can only consider the pleadings and proof on file at the time of the summary-judgment hearing "or filed thereafter and before judgment with permission of the court"); Hardin v. Hardin, 597 S.W.2d 347, 349-50 (Tex. 1980) (affirming the denial of leave to amend on the day of trial to add affirmative defenses); see also Cherry v. McCall, 138 S.W.3d 35, 43 (Tex. App.—San Antonio 2004, pet. denied); Leinen v. Buffington's Bayou City Serv. Co., 824 S.W.2d 682, 685 (Tex. App.—Houston [14th Dist.] 1992, no writ) ("There is nothing in the record to show that appellant had obtained leave of court to file the amended pleading, or even brought it to the attention of the court so as to be considered on the motion for summary judgment. A trial court does not abuse its discretion by refusing to consider summary judgment pleadings filed after the summary judgment hearing. . . . Appellant's second point of error is overruled.").
Accordingly, "a party bears the risk of mistake when the risk is allocated to him by agreement." Cherry v. McCall, 138 S.W.3d 35, 40 (Tex. App.—San Antonio 2004, pet. denied) (citing RESTATEMENT (SECOND) OF CONTRACTS § 154 (AM. LAW INST. 1981) and de Monet v. PERA, 877 S.W.2d 352, 359 (Tex. App.—Dallas 1994, no writ)); accord Smith v. Lagerstam, No. 03-05-00275-CV, 2007 WL 2066298, at *8 (Tex. App.—Austin 2007, no pet.) (quoting RESTATEMENT (SECOND) OF CONTRACTS § 154(a) (AM. LAW INST. 1981)). When the risk of mistake is allocated to the defendant by agreement, the defendant's mutual mistake defense "fails as a matter of law."
Under Texas law, where, as here, "[an] `as is' clause is an important part of the basis of the bargain, not an incidental or `boiler-plate' provision, and is entered into by parties of relatively equal bargaining position, a buyer's affirmation and agreement that he is not relying on representations by the seller should be given effect." Cherry v. McCall, 138 S.W.3d 35, 39-40 (Tex.App. 2004). In that instance, the buyer "cannot, as a matter of law, prevail on [its] breach of contract claim."
The buyer chooses to rely on his own determination of the condition and value of the purchase. Id.; see also Cherry v. McCall, 138 S.W.3d 35 (Tex.App.-San Antonio 2004, pet. denied). There are exceptions, however, to the rule that an "as is" clause precludes a buyer's recovery.
See West v. SMG, 318 S.W.3d 430, 436 (Tex. App.-Houston [1st Dist.] 2010, no pet.) (holding that when trial court granted motion for summary judgment, it implicitly overruled nonmovant's motion for continuance); Clemons v. Citizens Med. Ctr., 54 S.W.3d 463, 468 (Tex. App.-Corpus Christi-Edinburg 2001, no pet.) (holding motion for continuance was implicitly overruled when trial court heard motion for summary judgment without continuing it); Cherry v. McCall, 138 S.W.3d 35, 40 (Tex. App.-San Antonio 2004, pet. denied) (holding trial court implicitly overruled request for additional discovery time "to demonstrate that defendant is not entitled to summary judgment" when it heard summary judgment motion without continuing it). Generally, it is not an abuse of discretion to deny a motion for continuance in the summary judgment context if the non-movant receives twenty-one days' notice of the summary judgment hearing, as required by Texas Rule of Civil Procedure 166a(c).
An enforceable as-is clause thus negates the elements of causation and reliance on claims relating to the sale. Id.; see Williams v. Dardenne, 345 S.W.3d 118, 124 (Tex. App.-Houston [1st Dist.] 2011, pet. denied) ("[A] valid 'as is' clause negates the elements of causation and reliance for DTPA, fraud, or negligence claims relating to the value or condition of the property."); Welwood v. Cypress Creek Estates, Inc., 205 S.W.3d 722, 726 (Tex. App.-Dallas 2006, no pet.) ("In general, a valid 'as is' agreement negates the element of causation necessary to recover on claims regarding the physical condition of the property."); Cherry v. McCall, 138 S.W.3d 35, 40 (Tex. App.-San Antonio 2004, pet. denied) ("Because the [buyers] contracted to accept the property 'as is,' they cannot, as a matter of law, prevail on their breach of contract claim."). An as-is clause generally is enforceable if it was a significant part of the basis of the bargain, rather than an incidental or boilerplate provision, and was entered into by parties of relatively equal bargaining position. Prudential, 896 S.W.2d at 162; Bynum v. Prudential Residential Servs., 129 S.W.3d 781, 789 (Tex. App.- Houston [1st Dist.] 2004, pet. denied).
We also review a trial court's decision to strike an amended pleading for an abuse of discretion. SeeCherry v. McCall , 138 S.W.3d 35, 42–43 (Tex. App.—San Antonio 2004, pet. denied). A trial court abuses its discretion when it acts arbitrarily, unreasonably, or without any reference to guiding rules or principles.
Contract language stating that the buyer accepts the property in its present condition constitutes an "as is" clause. Boehl v. Boley, No. 07-09-0269-CV, 2011 Tex. App. LEXIS 528, at *5 (Tex. App.—Amarillo Jan. 26, 2011, pet. denied) (mem. op.); Cherry v. McCall, 138 S.W.3d 35, 39 (Tex. App.—San Antonio 2004, pet. denied). When a buyer agrees to purchase something as is, he agrees to make his own appraisal of the bargain and to accept the risk that he may be wrong.
Once the hearing date for a motion for summary judgment has passed, a party may only file an amended pleading if the trial court has not signed a judgment and the party secures a written order granting leave to do so. See id.; Tex. R. Civ. P. 63; Cherry v. McCall, 138 S.W.3d 35, 43 (Tex.App.-San Antonio 2004, pet. denied); Hussong v. Schwan's Sales Enters., Inc., 896 S.W.2d 320, 323 (Tex.App.-Houston [1st] 1995, no writ). Mary Lou did not amend her petition until after the trial court had already signed its summary judgment order, and the record reflects she did not secure a written order granting her leave to amend. Therefore, despite the filing of Mary Lou's fourth amended petition, the trial court did not err by granting summary judgment in favor of Peter.
The trial court further permitted defendant to read to the jury the provisions of OCGA § 40-6-392 (c), including the fines and penalties applicable to a second DUI conviction and the court instructed the jury that this Code section was to be considered as it "may bear upon the question of mitigation in this case." The early case of " Cherry v. McCall, 23 Ga. 193, places Georgia among those states which permit [the] use of criminal punishments [to mitigate civil punitive damages arising from the same act]." White v. Taylor, 157 Ga. App. 328, 329 ( 277 S.E.2d 321).