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Sosa v. Central Power & Light11/16/1995
Opinion Delivered: November 16, 1995
On Application for Writ of Error to the Court of Appeals for the Fourth District of Texas
This case involves the construction of Rule 63 of the Texas Rules of Civil Procedure. The question is whether Rule 4 governs the computation of the time period in Rule 63. Rule 63 provides that an amended pleading requires leave of court if it is filed within seven days of trial. Because we conclude Rule 4 does govern, we reverse the judgment of the court of appeals and remand the case to the trial court for further proceedings. Tex. R. App. P. 170.
Lydia Sosa and her children sued Central Power & Light, Houston Lighting & Power Company, and General Electric for the wrongful death of Lydia's husband, Clemente M. Sosa, Jr. Sosa died from liver disease allegedly caused by exposure to toxic chemicals during the 1970s while he was employed by the defendants. The plaintiffs' first amended original petition alleged that Sosa was in good physical health before Central Power's wrongful conduct, but had been incapacitated from the date of his injuries until the date of his death approximately twenty years later. The defendants filed a motion for summary judgment asserting that the Sosas' claims were barred by the statute of limitations, and relying on the factual admissions in the Sosas' pleadings.
The summary judgement hearing was scheduled for November 17, 1993.
Without first obtaining leave of court, the Sosas filed their second amended original petition on November 10, 1993. This amended petition deleted the factual allegations forming the basis of the defendants' motion for summary judgement and added the allegation that Sosa neither discovered nor should have discovered the nature of his injury until less than six months before his death. The defendants filed a motion to strike the amended petition. They asserted that Rule 63 required a party to obtain leave to amend if the amendment is filed seven days or less before the date of trial, excluding the date of filing.
At the summary judgement hearing, the Sosas made their first motion for leave to amend even though they argued that the amended petition was timely filed. The trial court granted the defendants' motion to strike the amendment, thus leaving the Sosas' first amended original petition as their only live pleading. Thereafter, the trial court granted the defendants' motion for summary judgement based on the factual admissions in the first amended petition. The court of appeals affirmed. 901 S.W.2d 562. We reverse.
Rule 63 of the Texas Rules of Civil Procedure states that "any pleadings, responses or pleas offered for filing within seven days of the date of trial or thereafter . . . shall be filed only after leave of the judge is obtained." Tex. R. Civ. P. 63 (emphasis added). This Court's comment to the rule more clearly states our intent to authorize amendment without leave of court if it is filed "seven days or more before the date of trial." Id. cmt.
We have never specifically dealt with how the time period prescribed in Rule 63 should be computed. However, in an opinion not cited by the court of appeals, we emphasized that Rule 4 "applies to any period of time prescribed by the rules of procedure." Lewis v. Blake, 876 S.W.2d 314, 316 (Tex. 1994) (emphasis in original).
Rule 4 provides:
In computing any period of time prescribed or allowed by [the Texas Rules of Civil Procedure], . . . the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included.
Tex. R. Civ. P. 4.
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