Michelle Marie Acuna v. Far West Rodeo-El Paso, Ltd., Far West Development, Ltd., Far West Operations, Inc., Far West Rodeo Investments, Inc. and Far West Rodeo--Appeal from 131st Judicial District Court of Bexar County

No. 04-00-00874-CV
Michelle Marie ACUNA,
Appellant
v.
FAR WEST RODEO, et al.,
Appellees
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2000-CI-06511
Honorable Michael Peden, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Tom Rickhoff, Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: August 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. 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).

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.2d 425, 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