Opinion
No. 04-06-00131-CV.
Delivered and Filed: January 31, 2007.
Appealed from County Court at Law No. 2, Bexar County, Texas Trial Court No. 293108 Honorable David J. Rodriguez, Judge Presiding.
The Honorable Paul Canales is the presiding judge of County Court at Law No. 2. However, the Honorable David J. Rodriguez, presiding judge of County Court at Law No. 3, presided over the trial and signed the judgment.
Sitting: CATHERINE STONE, Justice, KAREN ANGELINI, Justice, STEVEN C. HILBIG, Justice.
MEMORANDUM OPINION
Edward Fischer, Jr. appeals the trial court's judgment awarding Billy Wells damages for breach of contract. We affirm.
1. Fischer first argues the trial court abused its discretion in denying his request for a trial amendment to plead the affirmative defense of the statute of frauds, arguing the issue was tried by consent and he was thus entitled to amend his pleadings to conform to the evidence. We disagree.
When a party seeks a trial amendment to assert a new defense, the decision whether to allow amendment rests within the sound discretion of the trial court. State Bar of Texas v. Kilpatrick, 874 S.W.2d 656, 658 (Tex. 1994). A trial court has discretion to grant a trial amendment when an unpleaded issue has been "clearly tried" by consent. Libhart v. Copeland, 949 S.W.2d 783, 797 (Tex.App.-Waco 1997, no writ); Tex. R. Civ. P. 67. To decide whether an issue was tried by consent, we review the record "not for evidence of the issue, but rather for evidence of trial of the issue." Case Corp. v. Hi-Class Bus. Sys. Of Amer., Inc., 184 S.W.3d 760, 771 (Tex.App.-Dallas 2005, pet. denied). "A party's unpleaded issue may be deemed tried by consent when evidence on the issue is developed under circumstances indicating both parties understood the issue was in the case, and the other party failed to make an appropriate complaint." Id. However, "trial by consent is inapplicable when evidence relevant to an unpleaded matter is also relevant to a pleaded issue; in that case admission of the evidence would not be calculated to elicit an objection, and its admission ordinarily would not demonstrate a `clear intent' on the part of all parties to try the unpleaded issue." Id. (internal citation omitted).
On the day the case was set for trial, Fischer moved for leave to amend his answer to add a verification to his general denial. The amended answer Fischer submitted to the court included a paragraph labeled "affirmative defenses" but the paragraph was stricken through and bore Fischer's attorney's initials. Before the trial court granted the motion, Fischer assured the court and Wells that he only wanted to verify his answer and was not pleading any affirmative defenses. However, after Wells testified that the total amount owed was $20,000 and he expected to be paid $250 per week over a period of twenty months, Fischer moved for a trial amendment to plead the affirmative defense of the statute of frauds, arguing the issue had been tried by consent. The trial court denied the motion.
Because the record does not indicate both parties understood the statute of frauds issue was to be tried and because the evidence raising the issue is also relevant to establishing the terms of the contract, the issue was not tried by consent and the trial court did not abuse its discretion in denying Fischer's motion for a trial amendment.
2. Fischer next contends the trial court erred in not filing findings of fact and conclusions of law after Fischer properly requested them. After Fischer filed his brief, this court abated the cause for the trial court to file its findings and conclusions. The trial court did so and they were filed in this court in a supplemental clerk's record. Accordingly, Fischer's complaint is moot.
3. Finally, Fischer contends the judgment in favor of Wells is "against the great weight of the evidence," which we construe as a challenge to the factual sufficiency of the evidence. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). However, Fischer argues only that he cannot brief the argument because no findings or conclusions were filed. Fischer did not file an amended or supplemental brief after the trial court filed its findings and conclusions, nor did he file a reply brief in which he adequately briefed his sufficiency complaint. We therefore conclude the issue is inadequately briefed and, therefore, waived. See Tex. R. App. P. 38.1(h).
The trial court's judgment is affirmed.
AFFIRMED