law-amending-pleadings-under TRCP | amendments prior to trial, summary judgment hearing | 7-day rule |
untimely amendments | leave to late-file amendments | trial amendments | trial of unpleaded issue by consent |
Unless a different deadline is provided by the trial court’s scheduling order, parties may freely amend
their pleadings without leave of court up to seven days before trial unless the amended pleadings
operate as a surprise to the opposing party. TEX. R. CIV. P. 63; In re Estate of Henry, 250 S.W.3d
518, 526 (Tex. App.—Dallas 2008, no pet.). A summary judgment proceeding is a trial within the
meaning of rule 63. Goswami v. Metro. Sav. & Loan Ass’n, 751 S.W.2d 487, 490 (Tex. 1980); Mensa-
Wilmot v. Smith Int’l, Inc., 312 S.W.3d 771, 778 (Tex App.—Houston [1st Dist.] 2009, no pet.).
Parties may amend their pleadings within seven days of the date of trial or thereafter, or after such time as may
be ordered by the judge under rule 166, only after obtaining leave from the trial court, which shall be granted
"unless there is a showing that such filing will operate as a surprise to the opposite party." Tex. R. Civ. P. 63.
During trial, a "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 trial court's decision on whether to allow the amendment of pleadings is reviewed under an abuse-of-
discretion standard. Perez v. Embree Constr. Group, Inc., 228 S.W.3d 875, 882-83 (Tex. App.--Austin 2007,
pet. denied) (citing Ohio Med. Prods., Inc. v. Suber, 758 S.W.2d 870, 872 (Tex. App.--Houston [14th Dist.]
1988, writ denied)). 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. Greenhalgh v. Serv.
Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex. 1990); Hakemy Bros., Ltd. v. State Bank &Trust Co., Dallas, 189 S.
W.3d 920, 924 (Tex. App.--Dallas 2006, pet. denied). The party opposing the amendment generally has the
burden to show prejudice or surprise. Greenhalgh, 787 S.W.2d at 939. However, the trial court may conclude
that 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. Id. at 940; see also Chapin &
Chapin, Inc. v. Tex. Sand & Gravel Co., Inc., 844 S.W.2d 664, 665 (Tex. 1992) (distinguishing between "formal,
procedural" amendments that "simply conform the pleadings to the evidence at trial" and do not result "in
surprise or prejudice" and "substantive" amendments that "clearly change the nature of the trial itself"). In that
situation, the opposing party's objection is sufficient to show surprise. Greenhalgh, 787 S.W.2d at 940 n.3.
Air Products & Chemicals Inc. v. Odfjell Seachem (Tex.App.- Houston [1st Dist.] Aug. 27, 2009)(Jennings)
(jury charge error claim overruled, harmful error analysis, negligence per se claim, amending pleadings)
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
Before Justices Jennings, Keyes and Higley
01-08-00591-CV Air Products & Chemicals Inc. v. Odfjell Seachem A/S, Odfjell Asia Pte. Ltd., and Odfjell
Singapore Pte., Ltd Appeal from 61st District Court of Harris County
Trial Court Judge: Hon. John Donovan
Amended Pleadings and Summary Judgments
Rule 63 of the Texas Rules of Civil Procedure provides,
Parties may amend their pleadings . . . by filing such pleas with the clerk at such time as not to operate as a
surprise to the opposite party; provided, 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.
Tex. R. Civ. P. 63. A summary judgment hearing is a trial for purposes of rule 63. Wheeler v. Yettie Kersting
Mem'l Hosp., 761 S.W.2d 785, 787 (Tex. App.--Houston [1st Dist.] 1988, writ denied); see Sosa v. Cent. Power
& Light, 909 S.W.2d 893, 895 (Tex. 1995) (applying rule 63 to amendment filed before summary judgment
hearing). In addition to the time period for filing an amended petition in rule 63, rule 166a provides that a trial
court shall render summary judgment if the pleadings and summary judgment evidence "on file at the time of
the hearing, or filed thereafter and before judgment with permission of the court" show the movant is entitled to
judgment as a matter of law. Tex. R. Civ. P. 166a(c) (emphasis added).
Although subject to the first requirement of rule 63 that an amendment must be made "at such time as not to
operate as a surprise to the opposite party," a party may file an amended pleading outside seven days of the
trial date freely, without leave of court. Tex. R. Civ. P. 63; Sosa, 909 S.W.2d at 895; see also Judge David
Hittner & Lynne Liberato, Summary Judgments in Texas, 47 S. Tex. L. Rev. 409, 418 (2006). If an amended
pleading is filed within seven days but before the hearing, leave of court is required. See Houtex Ready Mix
Concrete & Materials v. Eagle Constr. & Envtl. Servs., L.P., 226 S.W.3d 514, 520 (Tex. App.--Houston [1st
Dist.] 2006, no pet.). An appellate court, however, will presume leave was granted "when a summary judgment
states that all pleadings were considered, and when, as here, the record does not indicate that an amended
pleading was not considered, and the opposing party does not show surprise." Cont'l Airlines, Inc. v. Kiefer, 920
S.W.2d 274, 276 (Tex. 1996); see also Hittner, supra at 418-19 (citing Kiefer, 920 S.W.3d at 276 and 9029
Gateway S. Joint Venture v. Eller Media Co., 159 S.W.3d 183, 187 (Tex. App.--El Paso 2004, no pet.)).
Unlike amended pleadings filed within seven days before the summary judgment hearing, there is no
presumption that leave was granted when amended pleadings are filed after the summary judgment hearing.
After the summary judgment hearing but before the trial court renders judgment, a party must obtain the leave
of the court to amend a pleading. Hittner, supra, at 419 (citing Tex. R. Civ. P. 166a(c) and Hussong v. Schwan's
Sales Enters., Inc., 896 S.W.2d 320, 323 (Tex. App.--Houston [1st Dist.] 1995, no writ)); see also Austin v.
Countrywide Homes Loans, 261 S.W.3d 68, 75 (Tex. App.--Houston [1st Dist.] 2008, pet. denied) ("Once the
hearing date for a motion for summary judgment has passed, the movant must secure a written order granting
leave in order to file an amended pleading."); C/S Solutions, Inc. v. Energy Maintenance Services Group LLC,
274 S.W.3d 299, 307 (Tex. App.--Houston [1st Dist.] 2008, no pet.) (stating party that attempted to amend
pleadings "needed leave of court under Rule 63 because the summary-judgment hearing had already been
held"); see also Automaker, Inc. v. C.C.R.T. Co., 976 S.W.2d 744, 745 (Tex. App.--Houston [1st Dist.] 1998, no
pet.) ("A nonmovant must secure the court's permission if it files the amended pleading after the summary
judgment hearing.") (Emphasis in original). In contrast to the presumption we apply to an amended pleading
filed within seven days of the hearing, "[u]nless the record shows that the trial court granted leave to file the
pleading, the appellate court will assume leave was denied." Austin, 261 S.W.3d at 76.
Amended pleadings in the different categories described above are treated differently. A proper amended
pleading supersedes and replaces prior pleadings. FKM P'ship, Ltd. v. Bd. of Regents of the Univ. of Houston
Sys., 255 S.W.3d 619, 633 (Tex. 2008) (citing Tex. R. Civ. P. 65). Thus, generally, (1) once a plaintiff has
timely amended his petition, or has done so with leave of court, to plead additional claims, a defendant is not
entitled to a summary judgment on the plaintiff's entire case, unless the defendant amends or supplement its
motion for summary judgment to address the claims asserted in the amended pleading. Rotating Servs. Indus.,
Inc. v. Harris, 245 S.W.3d 476, 487 (Tex. App.--Houston [1st Dist.] 2007, pet. denied) (citing Blancett v.
Lagniappe Ventures, Inc., 177 S.W.3d 584, 592 (Tex. App.--Houston [1st Dist.] 2005, no pet.); Smith v. Atl.
Richfield Co., 927 S.W.2d 85, 88 (Tex. App.--Houston [1st Dist.] 1996, writ denied)).
However, if a plaintiff seeks to amend in the seven-day period before the summary judgment hearing and leave
to amend was denied, or the presumption that leave was granted does not apply, the amended petition is not
timely and should not be considered by the trial court. McIntyre v. Wilson, 50 S.W.3d 674, 684 (Tex. App.--
Dallas 2001, pet. denied); Domizio v. Progressive County Mut. Ins. Co., 54 S.W.3d 867, 875-76 (Tex. App.--
Austin 2001, pet. denied). The same is true of a pleading filed after the summary judgment hearing without
leave of court; we do not consider an amended pleading filed without the trial court's permission after the
summary judgment hearing. See Taylor v. Sunbelt Mgmt., Inc., 905 S.W.2d 743, 745 (Tex. App.--Houston [14th
Dist.] 1995, no writ) (stating "we cannot consider appellants' pleadings which were admittedly filed after the
motion for summary judgment hearing"); W. Tex. Gas, Inc. v. 297 Gas Co., 864 S.W.2d 681, 685 (Tex. App.--
Amarillo 1993, no writ) (holding trial court did not err by failing to consider amended petition filed after hearing
without leave of court). Because an amendment that is not timely and not allowed by the trial court does not
supersede the prior petition, the summary judgment movant need not amend or supplement his motion to
address those claims. See Taylor, 905 S.W.2d at 745 (citing Tex. R. Civ. P. 166a(c) and holding trial court did
not err by granting summary judgment when new, unaddressed claims were added by amended petition filed
after hearing without leave of court); W. Tex. Gas, Inc., 864 S.W.2d at 685 (same); see also Hittner, supra, at
419-20 (stating movant need not amend motion for summary judgment to address amended pleadings if
summary judgment filed after court-ordered deadline to amend pleadings).
Mensa-Wilmot v. Smith International, Inc. (Tex.App.- Houston [1st Dist.] Nov. 19, 2009)(Alcala) (breach of
contract, option contract, untimely amendment of pleadings prior to summary judgment hearing, finality)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Alcala
Before Justices Keyes, Alcala and Hanks
01-08-00481-CV Graham Mensa-Wilmot v. Smith International, Inc.
Appeal from 165th District Court of Harris County
Trial Court Judge: Hon. Elizabeth Ray
1. There are exceptions to the general rule that are not applicable to this case. For example, if the amended
petition essentially reiterates previously pleaded causes of action and a ground asserted in a motion for
summary judgment conclusively negates a common element of both the newly and previously pleaded claims,
or the original motion is broad enough to encompass the newly asserted claims, an amended or supplemental
motion for summary judgment is not necessarily needed. Rotating Servs. Indus., Inc. v. Harris, 245 S.W.3d 476,
487 (Tex. App.--Houston [1st Dist.] 2007, pet. denied) (citing Blancett v. Lagniappe Ventures, Inc., 177 S.W.3d
584, 592 (Tex. App.--Houston [1st Dist] 2005, no pet.); Fraud-Tech, Inc. v. Choicepoint, Inc., 102 S.W.3d 366,
387 (Tex. App.--Fort Worth 2003, pet. denied); Farah v. Mafrige & Kormanik, P.C., 927 S.W.2d 663, 671-72
(Tex. App.--Houston [1st Dist.] 1996, no writ); Judwin Props., Inc. v. Griggs & Harrison, 911 S.W.2d 498, 502
(Tex. App.--Houston [1st Dist.] 1995, no writ)).
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