Northshore Auto Parts & Service v. Holloway, Brian P.--Appeal from Co Civil Ct at Law No 2 of Harris County

Affirmed as Modified and Opinion filed December 31, 2002

Affirmed as Modified and Opinion filed December 31, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-02-00051-CV

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NORTHSHORE AUTO PARTS & SERVICE, Appellant

V.

BRIAN P. HOLLOWAY, Appellee

On Appeal from the County Civil Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 745,362

O P I N I O N

Following a bench trial in this personal injury case, the trial court rendered judgment appellee Brian H. Holloway recover the following from appellant Northshore Auto Parts & Service: $18,000 in damages, $4,063.56 in prejudgment interest, $1,248.05 in costs, and post-judgment interest at the rate of ten percent per year. We modify the judgment to reduce the prejudgment interest to $1,415.34 and affirm the judgment as so modified.

FACTUAL AND PROCEDURAL BACKGROUND

On December 28, 1998, Holloway was injured when he rode his bicycle between two poles holding Northshore s business sign. Holloway s head struck a two-by-six board nailed between the poles. The accident occurred at night, and there were no warning devices on the board.

Holloway filed suit on December 18, 2000, alleging common law negligence and negligence per se, in that the sign was in violation of the Houston City Code. According to the docket sheet, Holloway filed his first set of interrogatories, first request for production, and first request for admissions on the same date. On February 12, 2001, Northshore answered, apparently alleging only a general denial.[1] According to the docket sheet, Northshore filed its responses to discovery on April 6, 2001. It appears undisputed that Northshore did not answer any request for disclosures, did not provide a response to the request for production, and did not verify its answers to the interrogatories.

Trial was originally set for June 11, and then reset for June 18, 2001. Holloway s counsel, who had a vacation letter on file for June 4 through 29, did not appear, and the trial court dismissed the case for want of prosecution. On Holloway s unopposed motion, the court reinstated the case, and, after an unsuccessful attempt at mediation, trial was set for September 17, 2001. On September 13, 2001, Northshore filed its first amended answer, alleging among other matters, that Holloway was a trespasser.[2]

On the day of trial, Holloway objected to the late filed answer. Northshore contended Holloway could not claim surprise because Northshore had referred to trespass in its response to the interrogatories and in mediation. Holloway responded that the unverified interrogatory responses contained no reference to trespass. Holloway also requested Northshore not be permitted to present any evidence because of its untimely, improper, and incomplete responses to discovery.

The trial court took judicial notice of what s been answered, so forth, in terms of discovery. It also struck any amended pleadings as not having been filed timely, if, in fact, they were filed at all.

Brian Holloway testified in his case-in-chief. He stated he was riding his bicycle down Uvalde, went around a median, and came back up Uvalde when two cars approached. He left the road, got on the entrance ramp to Northshore s business, went between Northshore s sign supports, rode smack into the board, and that was all he remembered. There was no warning device or reflective light, and Holloway had ridden his bicycle under the sign before the accident. To Holloway s knowledge, people used the area as a walk-through.

On cross-examination, Holloway testified he did not patronize Northshore. Over Holloway s objection, the court permitted Northshore to elicit Holloway s testimony he was not on the premises to purchase anything from Northshore.

When Northshore called Northshore s owner, James Walton Woosley, to testify, Holloway reiterated his previous objection, and the court responded, If it turns out that there is anything that [sic] the matter of discovery, or lack thereof, I will disregard. Holloway did not again object on the basis of discovery, and there is no indication the trial court excluded or disregarded any evidence on that ground. Woosley testified he had added the board in question to hold a marquis sign to advertise daily specials. Woosley testified the marquis had been there for three or four years. A sidewalk was available for passing in front of Northshore s business. There was no paved area under the sign.

On rebuttal, Carol Holloway, Brian Holloway s mother, testified she walked through the two pillars of the sign whenever she got off the bus at a nearby bus stop. She had also seen other people walk between the pillars of the sign. People did so because the sidewalk was cracked and there was a large ant hill by the curb. According to Holloway, Woosley told her that a few days before the accident the wind had blown down the marquis sign that had been on the board.

At the close of evidence, the trial court rendered judgment in favor of Holloway in the amount of $18,000. Based on the period of June 29, 1998 through October 1, 2001, the court awarded prejudgment interest of $4,063.56.

DISCUSSION

 Striking of Appellant s First Amended Answer

In issue one, Northshore contends the trial court erred in striking its first amended answer. Northshore filed its amended answer on September 13, 2001, four calendar days before the September 17 trial setting.

Within seven days of a trial date, parties may amend their pleadings only with the trial court s permission. Tex. R. Civ. P. 63. The trial court shall permit the amendment unless the opposite party shows that filing the amendment operates as a surprise. Id. The trial court may not refuse an 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. Service Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex. 1990).[3]

An amendment is mandatory if it is merely procedural in nature. Stephenson v. LeBoeuf, 16 S.W.3d 829, 839 (Tex. App. Houston [14th Dist.] 2000, pet. denied) (citing Chapin & Chapin, Inc. v. Texas Sand & Gravel Co., 844 S.W.2d 664, 665 (Tex.1992)). An amendment is not mandatory if it is substantive, i.e., one that changes the nature of the trial. Id. (citing Chapin, 844 S.W.2d at 665). If the amendment is not mandatory, the decision to allow or deny the amendment is within the sound discretion of the trial court. Id. (citing State Bar of Texas v. Kilpatrick, 874 S.W.2d 656, 658 (Tex.1994)). Therefore, the trial court s decision to allow or deny the amendment may be reversed only if it is a clear abuse of discretion. Kilpatrick, 874 S.W.2d at 658; Stephenson, 16 S.W.3d at 839.

In the context of a case construing Texas Rule of Civil Procedure 66, relating to trial amendments, this court has explained:

An amendment prejudicial on its face has three defining characteristics ascertainable from the amendment viewed in the context of the record. First, the amendment must assert a new substantive matter that reshapes the nature of the trial itself. See [Whole Foods Market Southwest, L.P. v. Tijerina, 979 S.W.2d 768, 776 (Tex. App. Houston [14th Dist.] 1998, pet. denied)]. Second, the new matter asserted must be of such a nature that the opposing party could not have anticipated it in light of the development of the case up to the time the amendment was requested. See id. [M]erely because the opposing party did not anticipate the issues in the amendment is not the test. The question is whether the opposing party could have anticipated the newly asserted matter as revealed by the record of the case. See id. (quoting Smith Detective Agency & Nightwatch Serv., Inc. v. Stanley Smith Sec., Inc., 938 S.W.2d 743, 749 (Tex. App. Dallas 1996, writ denied)) (emphasis in the original). Third, the opposing party s presentation of the case would be detrimentally affected by the filing of the amendment. See id.

Stephenson, 16 S.W.3d at 839.

In the trial court, the burden of showing prejudice or surprise rests on the party resisting the amendment. Greenhalgh, 787 S.W.2d at 939. When a trial court refuses an amendment that introduces a new substantive matter under Rule 63, the complaining party on appeal has the burden of showing abuse of discretion. Hardin v. Hardin, 597 S.W.2d 347, 349 (Tex. 1980).

We conclude Northshore has not shown an abuse of discretion in the present case. Northshore sought to amend its answer nine months after Holloway filed his original petition and after two previous trial settings. The amended answer contained, for the first time, an allegation Holloway was a trespasser. The trial court appears to have based its decision to strike the pleadings on surprise. In the trial court, Northshore contended that, because it raised the trespass defense in its answers to the interrogatories and in discussions at mediation, Holloway was not surprised. There is, however, nothing in the appellate record to support Northshore s contention. Without such support in the record, we must presume the trial court did not abuse its discretion. See Forest Lane Porsche Audi v. G & K Services, Inc., 717 S.W.2d 470, 473 (Tex. App. Fort Worth 1986, no writ); see also Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987) (stating that party complaining of abuse of discretion has burden to present record showing such abuse).

In addition, the new allegation would have changed the nature of the trial. To establish his premises liability claim, Holloway had to prove the following elements: (1) Northshore s actual or constructive knowledge of some condition on the premises; (2) which condition posed an unreasonable risk of harm; (3) Northshore did not exercise reasonable care to reduce or eliminate the risk; and (4) Northshore s failure to use such care proximately caused Holloway s injuries. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex.2000). The extent of the duty Northshore owed Holloway depended on Holloway s status as a trespasser (whose presence on the property is unauthorized), a licensee (who comes onto the property with permission, but for his own purposes rather than a purpose mutually benefitting Northshore and Holloway), or an invitee (who is expressly invited onto the property for Northshore s and Holloway s mutual benefit). See Marathon Corp. v. Pitzner, 55 S.W.3d 114, 129 30 (Tex. App. Corpus Christi 2001, pet. filed) (citing Mellon Mortgage Co. v. Holder, 5 S.W.3d 654, 655 (Tex. 1999), which focused on foreseeability, but did not do away with the traditional premises liability categories).

Holloway s pleadings support his status as a licensee. See, e.g., Weaver v. KFC Management, Inc., 750 S.W.2d 24, 26 27 (Tex. App. Dallas 1988, writ denied) (indicating individual who slipped on grease while taking short cut through a parking lot may be considered licensee). The duty owed to a licensee is not to injure the licensee willfully, wantonly, or through gross negligence, and, in cases in which the owner or occupier has actual knowledge of a dangerous condition unknown to the licensee, to warn of or make safe the dangerous condition. Lower Neches Valley Auth. v. Murphy, 536 S.W.2d 561, 563 (Tex.1976). The only duty a premises owner or occupier owes to a trespasser, however, is not to cause injury willfully, wantonly, or through gross negligence. Texas Utilities Elec. Co. v. Timmons, 947 S.W.2d 191, 193 (Tex.1997). Thus, putting Holloway s status at issue would have reshaped the issue of the scope of Northshore s duty.[4] We hold the trial court did not abuse its discretion by striking Northshore s untimely amended answer.

We overrule Northshore s issue one.

The Trial Court s Purported Consideration of Unverified and Missing Discovery

In issue two, Northshore complains, The trial Court erred in giving consideration to the allegations that the discovery sought by [Holloway] was not verified and that [Holloway] allegedly served [Northshore] with Requests for Disclosure which were never answered. In support of this issue, Northshore cites TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991) (orig. proceeding). In that case, the trial court struck TransAmerican s pleadings as a discovery sanction. In the present case, however, the trial court struck Northshore s first amended answer, not as a discovery sanction, but because it was untimely; and, as we held in issue one, the trial court did not abuse its discretion in doing so.[5]

We overrule Northshore s issue two.

Calculation of Prejudgment Interest

In issue three, Northshore complains the trial court erred in two ways in calculating interest. First, the trial court used the wrong accrual date. Second, the trial court did not consider the delay caused by Holloway s failure to appear for trial and the concomitant dismissal for want of prosecution. Northshore brought these complaints to the trial court s attention in its motion for new trial. In his appellate brief, Holloway concedes the trial court used the wrong accrual date, and agrees to remit $1627.40 of the prejudgment interest.

Texas Finance Code section 304.104 provides in relevant part:

Except as provided by Section 304.105 or 304.108, prejudgment interest accrues on the amount of a judgment during the period beginning on the earlier of the 180th day after the date the defendant receives written notice of a claim or the date the suit is filed and ending on the day preceding the date judgment is rendered.

Tex. Fin. Code Ann. 304.104 (Vernon Supp. 2002).

Under Texas Finance Code section 304.108, a court may order that prejudgment interest does not accrue during periods of delay, and the court shall consider periods of delay caused by the defendant and the claimant. Tex. Fin. Code Ann. 304.108 (Vernon Supp. 2002). The trial court has discretion in awarding prejudgment interest during periods of delay. Lege v. Jones, 919 S.W.2d 870, 876 (Tex. App. Houston [14th Dist.] 1996, no writ) (citing prior Tex. Rev. Civ. Stat. Ann. art. 5069-1.05, 6(d); Southwest Airlines Co. v. Jaeger, 867 S.W.2d 824, 837 (Tex. App. El Paso 1993, writ denied)).

Here, the trial court used an incorrect accrual date of June 29, 1998, a date six months before the accident. In a document presented to the trial court, Holloway represented the notice date was December 29, 1998. On appeal, he states he gave Northshore written notice of his claim on November 26, 1999, and his reduction in prejudgment interest is calculated on that assumption. There is nothing in the appellate record, however, to substantiate this date. The record does show Holloway filed his original petition on December 18, 2000. Prejudgment interest at ten percent per annum on $18,000 beginning December 18, 2000 (the date suit was filed) through September 30, 2001 (the day preceding rendition of judgment) is $1,415.34. As set forth below, we modify the judgment to reflect this adjustment.

We also conclude the trial court did not abuse its discretion in not reducing the prejudgment interest because of the delay caused by the dismissal. The record contains Holloway s verified motion to reinstate, filed July 5, 2001, just seventeen days after the order of dismissal. In the motion, counsel explains he had a valid vacation letter on file covering the date on which the case was called for trial.

We sustain issue three in part and order a reduction in prejudgment interest to $1,415.34 (instead of $4.063.61 as set forth in the judgment).

Denial of Motion for New Trial

In issue four, Northshore argued the trial court erred in failing to grant its motion for new trial. Absent an abuse of discretion, we will not disturb a trial court s ruling on a motion for new trial. Prestige Ford Co. Ltd. P ship v. Gilmore, 56 S.W.3d 73, 77 (Tex. App. Houston [14th Dist.] 2001, pet. denied).

As Northshore concedes, the errors alleged on appeal are the same as the errors alleged in the motion for new trial. Northshore s issue four adds nothing new.

We overrule issue four.

CONCLUSION

We modify the judgment of the trial court by reducing the prejudgment interest award to $1,415.34. We affirm the judgment as so modified.

/s/ John S. Anderson

Justice

Judgment rendered and Opinion filed December 31, 2002.

Panel consists of Justices Yates, Anderson, and Frost.

Do Not Publish Tex. R. App. P. 47.3(b).

[1] This representation is from Holloway s counsel. Northshore s only pleading in the record is its first amended answer is part of the appellate record.

[2] On the day of trial, Holloway s counsel represented to the trial court he had checked the court s file and not found an amended answer. The amended answer in this court s record is stamped September 13, 2001.

[3] Appellant also alludes to Texas Rule of Civil Procedure 66, which provides for trial amendments. The record is devoid of any indication appellant moved for a trial amendment under Rule 66. Nevertheless, as Greenhalgh indicates, the analysis is substantially the same under the two rules. See Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex. 1990) (stating two-part disjunctive test as applying to both Texas Rules of Civil Procedure 63 and 66).

[4] Holloway was, however, prepared to, and did, present evidence other persons commonly walked between the sign pillars, evidence relevant to the question of trespasser or licensee status. See Murphy v. Lower Neches Valley Auth., 529 S.W.2d 816, 820 (Tex. Civ. App. Beaumont 1975) (holding summary judgment evidence did not establish that boy, who was injured after diving into a canal, was trespasser, instead of gratuitous licensee, when evidence showed boys swam in the canal every day and no signs prohibited such activity), rev d on other grounds, 536 S.W.2d 561 (Tex. 1976).

[5] Alternatively, if Northshore is complaining the trial court disregarded or excluded evidence as a discovery sanction, he has not shown reversible error on this ground. See Angroson, Inc. v. Indep. Communications, Inc., 711 S.W.2d 268, 275 (Tex. App. Dallas 1986, writ ref d n.r.e.) (holding appellant who complained of exclusion of testimony of witness not disclosed in discovery failed to show reversible error without a bill of exceptions).