Opinion
No. 05-08-00083-CV
Opinion issued February 14, 2008.
Original Proceeding from the 271st Judicial District Court, Jack County, Texas, Trial Court Cause No. 9612.
Before Chief Justice THOMAS and Justices MOSELEY and BRIDGES.
MEMORANDUM OPINION
In this original mandamus proceeding, relator Bob E. Carpenter contends the trial court abused its discretion in striking his Second Amended Original Answer. We conclude the trial court did not clearly abuse its discretion, and deny the petition for writ of mandamus.
The original proceeding was transferred to this Court from the Second District Court of Appeals by order of the Texas Supreme Court.
The trial court's March 19, 2007 pretrial scheduling order set a pretrial hearing for October 5, 2007, and trial for October 23, 2007. It also ordered all pleadings to be filed and furnished to opposing counsel "AT LEAST 14 FULL DAYS BEFORE SUCH PRETRIAL HEARING." On September 28, less than fourteen days before the pretrial hearing, Carpenter filed his First Amended Original Answer or, in the alternative, Motion for Leave to File Defendant's First Amended Original Answer. After a hearing, the trial court struck this pleading and denied the motion for leave. The case was not reached at the October 23 trial setting. On October 26, Carpenter filed his Second Amended Original Answer, Affirmative Defenses, Verified Denial, and Special Exceptions. Real party in interest Cimarron Hydrocarbons Corp. moved to strike that pleading and for sanctions. Although there was some discussion of the motion to strike at the trial court's November 19 pretrial hearing, the court deferred hearing the motion at that time.
Cimarron characterized the Second Amended Original Answer as containing "thirty new affirmative defenses, four verified denials, and three special exceptions." Although the record has a copy of Relator's Second Amended Original Answer, it does not contain a copy of his Original Answer.
The trial court heard Cimarron's motion to strike at its pretrial hearing on January 4, 2008. After hearing the argument of counsel, the trial court entered an order granting the motion and striking Carpenter's Second Amended Answer, except for paragraph 2.15 thereof. Carpenter filed this original proceeding challenging the trial court's order.
We interpret the effect of the trial court's ruling is that Carpenter's previous operative pleading remains in effect, as supplemented by paragraph 2.15 of the Second Amended Original Answer. See Tex. R. Civ. P. 65.
Carpenter asserts Texas Rule of Civil Procedure 63 entitled him to file his Second Amended Original Answer on October 25 without seeking leave of the court. Under Rule 63, a party generally may amend its pleadings as it desires, subject only to a complaint of surprise. See Tex. R. Civ. P. 63. However, the rule also states that:
any pleadings, responses or pleas offered for filing within seven days of the date of trial or thereafter, or after such time as may be ordered by the judge under Rule 166, shall be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite party.
Id.
Carpenter asserts the general provision of Rule 63 applies, not the provision applicable to pleadings filed within seven days of trial or after the date set by a pretrial order entered pursuant to Texas Rule of Civil Procedure 166. His rationale is that there was no longer a pleading deadline under the pretrial order because a "scheduling order will not survive the resetting of the case." As authority for that proposition, Carpenter cites H.B. Zachry Co. v. Gonzalez, 847 S.W.2d 246, 246-47 (Tex. 1993) (per curiam), and other cases. That language is not in H.B. Zachry Co., and we do not read the cases cited to stand for such a broad proposition.
In H.B. Zachry Co., the trial court excluded certain witnesses who were identified less than thirty days before trial, pursuant to former Rule 215(5) of the Texas Rules of Civil Procedure. The trial court later reset the case to a date more than thirty days from the prior setting. However, it still refused to permit Zachry to supplement its discovery to disclose the required information about the witnesses, which would pave the way for their testimony at the rescheduled trial. The supreme court stated:
The automatic exclusion of the evidence and/or witnesses from the trial provided by rule 215(5) does not continue beyond the resetting of the trial date where the date set is more than thirty days from the date of the original trial date. For the exclusion to remain beyond such a reset, the trial court's ruling enforcing the exclusion must be based on some other sanctionable conduct of the party.
Id. at 246. Because the record demonstrated the trial court's ruling was based solely on the automatic exclusion of the evidence called for by former Rule 215(5), the court conditionally granted mandamus relief. Id. at 246-47.
Clearly the trial court may schedule pretrial hearings and impose deadlines for filing amended pleadings. See Tex. R. Civ. P. 166. It did so here, specifying a pretrial hearing date of October 5 and a deadline for filing and serving amended pleadings of "fourteen full days" before that hearing. Most importantly, neither the pretrial date nor the pleading deadline was tied to the original October 23 trial date. Thus, unlike the deadline for disclosing witnesses mandated by former Rule 215(5), which was the subject of H.B. Zachry Co., here movement of the trial date did not automatically move the pretrial deadline. Instead, the pleading deadline was tied to the date of the pretrial hearing, which was held as scheduled.
We conclude Carpenter's right to amend his answer is governed by the second part of Rule 63. Carpenter may amend his pleadings "only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite party." Tex. R. Civ. P. 63. It is undisputed that Carpenter filed his Second Amended Original Answer without seeking or obtaining leave of court.
The party opposing the amendment generally has the burden to show prejudice or surprise. But the trial court may conclude the amendment is, on its face, calculated to surprise or that the amendment would reshape the cause of action, prejudicing the opposing party and unnecessarily delaying the trial. See Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938, 940 (Tex. 1990). "A trial court has no discretion to refuse the 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, and the opposing party objects to the amendment." Hakemy Bros., Ltd. v. State Bank Trust Co., Dallas, 189 S.W.3d 920, 924 (Tex.App.-Dallas 2006, pet. denied) (citing State Bar v. Kilpatrick, 874 S.W.2d 656, 658 (Tex. 1994) (per curiam); Greenhalgh, 787 S.W.2d at 938, 939; and G.R.A.V.I.T.Y. Enters., Inc. v. Reece Supply Co., 177 S.W.3d 537, 542 (Tex.App.-Dallas 2005, no pet.)).
Based on the record, we cannot conclude the trial court's January 4, 2008 order striking Carpenter's Second Amended Original Answer (except for paragraph 2.15 thereof) constitutes a clear abuse of discretion. See In re Prudential Ins. Co. of America, 148 S.W.3d 124, 135 (Tex. 2004); Walker v. Packer, 827 S.W.2d 833, 839-41 (Tex. 1992). We DENY Carpenter's petition for writ of mandamus.