 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Acuna v. Far West Rodeo8/22/2001
R>
The record shows Acuna filed her amended pleadings three days before the summary judgment hearing without seeking leave of the court to do so, either in writing or at the hearing. Although Acuna argues that courts liberally construe Rule 63 and the failure to obtain leave may be cured by the trial court's consideration of the amended pleading, that is not what happened here. To the contrary, the trial court explicitly stated in its order that it would not consider the amended pleading for any purpose, thus any presumption that leave was granted is unfounded. When a party files an amendment on the eve of trial without first seeking leave of court, we will not consider the party's complaint that the trial court abused its discretion in refusing to grant leave. Corpus Christi Area Teachers Credit Union v. Hernandez, 814 S.W.2d 195, 203 (Tex. App.-San Antonio 1991, no writ.). Acuna also relies on case law establishing the proposition that a party must be permitted to amend its pleadings before a cause will be dismissed based on limitations.
However, Far West Rodeo was not seeking dismissal, it was seeking summary judgment. Consequently, this authority is not applicable. In any event, Acuna did have an opportunity to amend her pleadings but she failed to timely do so. She was placed on notice of a limitations defense, and thus any pleading errors in her petition, when Far West Rodeo filed its answer alleging the defense. Acuna did nothing for 45 days.
We hold the trial court did not abuse its discretion in sustaining Far West Rodeo's objection to the amended pleadings.
Rendition of Summary Judgment
A court may only consider pleadings and proof on file at the time of the summary judgment hearing. See Leinen v. Buffington's Bayou City Servs., 824 S.W.2d 682, 684-85 (Tex. App.-Houston [14th Dist.] 1992, no writ). What was before the court at the time of the summary judgment hearing was (1) Acuna's live pleadings showing a date of injury in February 1997 or March 1998, and a filing date of May 2, 2000, and (2) Far West Rodeo's answer and motion for summary judgment based on a two year statute of limitations. There was no response to the motion for summary judgment and no proof of the actual date of injury. Given the state of the record before it, the trial court did not err in rendering summary judgment.
Motion for New Trial
We review a trial court's denial of a motion for new trial under an abuse of discretion standard, and indulge every reasonable presumption in favor of the ruling. Jackson v. Van Winkle, 600 S.W.2d 807, 809-10 (Tex. 1983). When a motion for new trial is filed after the trial court has rendered summary judgment, the court may consider only the record as it existed before the rendition of summary judgment; it does not abuse its discretion by refusing to consider proof filed after rendition. First Gibraltar Bank, FSB v. Farley, 895 S.W.2d425, 430 (Tex. App.-San Antonio 1995, no writ). Thus, the trial court did not abuse its discretion when it refused to consider proof of the actual date of injury and denied the motion for new trial.
Conclusion
We overrule points of error one and two.
We affirm the trial court's judgment.
Catherine Stone, Justice
DO NOT PUBLISH
|