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Acuna v. Far West Rodeo8/22/2001
AFFIRMED
This is an appeal of a summary judgment rendered on limitations for appellee Far West Rodeo. Appellant Michelle Marie Acuna contends the trial court abused its discretion by (1) not granting her leave to amend her petition; (2) granting Far West Rodeo's motion for summary judgment; and (3) denying her motion for new trial. We affirm.
Background
Acuna was injured on May 3, 1998, when she fell down a number of steps while at the Far West Rodeo nightclub. She sued the nightclub under various negligence theories, including failure to warn and premises defect, and filed her original petition on May 2, 2000. In the first paragraph of the parties section of the petition, she states, "The injury to Plaintiff occurred in Bexar County, Texas on or about March 3, 1998." In the opening paragraph of the facts section, she states, "On or about 19 February 1997, the Plaintiff was present on the premises of `Far West Rodeo' as an invitee . . . ." Neither of these dates was correct. In fact, she was injured May 3, 1998.
Based on the dates stated in the petition, Far West Rodeo filed a general answer on May 30, 2000 invoking the two year statute of limitations for personal injury suits. See Tex. Civ. Prac. & Rem. Code Ann. ยง 16.003(a) (Vernon Supp. 2001). On June 22, 2000, Far West Rodeo filed a motion for summary judgment based on limitations. The hearing on the motion for summary judgment was set for July 17, 2000. Acuna did not file a response to the motion.
On Friday, July 14, 2000, without seeking leave from the court, Acuna filed amended pleadings changing the date of injury to May 3, 1998. She gave a copy of the amended pleadings to opposing counsel at the hearing on Monday, July 17. Far West Rodeo objected to the late filing based on inadequate notice. The record of the hearing shows that no evidence regarding the date of the injury was presented. Although Acuna argued the change to the date was merely the correction of a typing error, Far West Rodeo challenged this characterization. The record shows the judge was confused by the two incorrect dates in the petition; ultimately, the trial court sustained the objection and orally granted the motion for summary judgment.
About a month after the hearing, Far West Rodeo filed a written objection to Acuna's amended petition. On August 17, the trial court entered an order sustaining the objection in which it noted, "The first amended petition will not be considered by the court for any purpose in connection with considering the defendant's motion for summary judgment." On August 28, the trial court entered an order rendering summary judgment for Far West Rodeo. Acuna filed a motion for new trial to which she attached a number of medical bills and reports indisputably proving the injury occurred on May 3, 1998, not in February 1997 or March 1998. The trial court denied the motion and this appeal ensued.
In point of error one, Acuna contends the trial court erred in refusing to permit her to amend her pleadings and in denying her motion for new trial. In point of error two, she argues the trial court erred in rendering summary judgment for Far West Rodeo.
Amended Pleadings
Amended pleadings must be filed at least seven days before a trial, unless the party seeking the amendment obtains leave of the court. Tex. R. Civ. P. 63. For the purposes of Rule 63, a summary judgment hearing is a trial. Goswami v. Metro Sav. & Loan Assoc., 751 S.W.2d 487, 490 (Tex. 1988). We review a trial court's ruling on an objection to amended pleadings under an abuse of discretion standard. Smith v. Heard, 980 S.W.2d 693, 698 (Tex. App.-San Antonio 1998, pet. denied).
Page 1 2 Texas Personal Injury Attorneys
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