Wayne W. Fogus and Colette Fogus v. Antonio Moreno and John Moreno--Appeal from 166th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-03-00679-CV

Wayne and Colette FOGUS,

Appellants

v.

Antonio and John MORENO,

Appellees

From the 166th Judicial District Court, Bexar County, Texas

Trial Court No. 2001-CI-7003

Honorable Barbara Nellermoe, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Paul W. Green, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice (concur in judgment only)

Delivered and Filed: July 14, 2004

AFFIRMED

Appellants, Wayne and Colette Fogus, appeal the judgment in favor of appellees, Antonio and John Moreno. Appellants complain of the trial court's judgment in three issues on appeal. Finding no error, we affirm.

BACKGROUND

In May 2001, appellees sued appellants under various causes of action based on allegations that they paid for certain tracts of land by paying appellants in full, but appellants failed to deliver clear title. The trial court originally called the case for trial on April 7, 2003. However, because of the court's docket, the trial court did not hear the case until April 28, 2003. On April 21, 2003, seven days before trial actually began, appellees filed their first amended petition with the trial court without filing a motion for leave. Appellants objected and filed a motion to strike asserting appellees did not seek leave to file the untimely amendment. The trial court conducted a hearing on the motion and denied appellants' motion to strike. Following a jury trial, the trial court entered a judgment in favor of appellees.

AMENDED PLEADINGS

In appellants' first issue on appeal, they assert the trial court erred in refusing to strike appellees' amended petition because leave to file the amended petition was neither sought nor obtained.

A party may file an amendment to its pleadings within seven days before the date of trial only with leave of court, which the court must grant "unless there is a showing that such filing will operate as a surprise to the opposing party." See Tex. R. Civ. P. 63. "Date of trial" refers to the date the case is set for trial, rather than the date trial actually begins. See Taiwan Shrimp Farm Village Ass'n v. U.S.A. Shrimp Farm Dev., Inc., 915 S.W.2d 61, 69-70 (Tex. App.--Corpus Christi 1996, writ denied). Here, the date of trial was April 7, 2003, and appellees filed their amended petition on April 21, 2003. Therefore, appellees' amended pleading was filed after the date of trial within seven days of the date of trial, and leave of court was required. A trial court must allow a party to amend its pleadings "unless there is a showing that such amendment will operate as a surprise to the opposite party." Tex. R. Civ. P. 63; Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex. 1990).

Although appellees did not seek leave of court to file their amended petition, the trial court held a hearing on appellants' motion to strike on April 28, 2003. At the hearing, the court stated that the appellants had to demonstrate surprise, in response to which appellants complained about the addition of two new defendants to the suit and the addition of new causes of action. Before the conclusion of the hearing, at the recommendation of both parties, the trial court agreed to sever the causes of action against the newly-added defendants. This severance eliminated any potential surprise or prejudice to appellants from the addition of new parties. In response to appellants' claims of new causes of action, appellees asserted the amended pleading served only to clarify the allegations in their original petition, but they conceded to the addition of a request for declaratory relief as a procedural safeguard. Appellees denied adding fraud as a new cause of action, explaining, instead, that the amended petition merely makes explicit what the original petition "says in fewer words or implies." Appellants did not controvert this argument or explain to the court how the amended petition was a substantive change that would alter the nature of the trial itself. No evidence of surprise was offered by the appellants, and, on several occasions during the hearing, appellants indicated that they would not seek a continuance and they stated they were ready to try the case. At the conclusion of the hearing, the trial court denied appellants' motion to strike.

We will not disturb a trial court's decision to allow an amendment within seven days of trial unless the complaining party shows an abuse of discretion. Greenhalgh, 787 S.W.2d at 939; see also Chapin & Chapin, Inc. v. Texas Sand & Gravel Co., 844 S.W.2d 664, 665 (Tex. 1992) (court has discretion to deny leave to amend if amendment represents a substantive change that would alter the nature of the trial itself). Also, leave of court to late file a pleading is presumed if the record is silent as to whether the trial court considered the amended pleading and the opposing party has failed to show surprise. See Goswami v. Metropolitan S&L Ass'n, 751 S.W.2d 487, 490 (Tex. 1988). Here, the trial court considered the amended pleading at the April 28th hearing and appellees did not satisfy their burden of showing surprise. Therefore, the amended pleading was properly before the trial court, see Goswami, 751 S.W.2d at 490-91, and, on this record, we cannot conclude the court abused its discretion in denying appellants' motion to strike.

JURY CHARGE ERRORS

In appellants' second and third issues on appeal, they argue the trial court erred in submitting fraud questions and instructions to the jury. Appellants contend: (1) if the trial court had struck appellees' amended pleading, appellees could not have properly submitted fraud questions to the jury because they had not previously pled a fraud cause of action; (2) by refusing to provide the jury with their requested instruction on fraud, the trial court provided the jury with an erroneous instruction on fraud; and (3) the erroneous fraud instructions provided the jury with too many options to find fraud, not sanctioned by the Texas Supreme Court. We will address these issues together.

Litigants are entitled to have the trial court submit controlling and disputed fact issues to the jury. Baribeau v. Gustafson, 107 S.W.3d 52, 58 (Tex. App.--San Antonio 2003, pet. denied). In order for the trial court to submit controlling issues to the jury, a party must properly plead and support those issues with some evidence. See Tex. R. Civ. P. 278; Triplex Communications, Inc. v. Riley, 900 S.W.2d 716, 718 (Tex. 1995). The propriety of the trial court's submission of controlling issues in a case is a question of law subject to de novo review. Baribeau, 107 S.W.3d at 58. In addition, in all jury cases, the trial court shall submit such instructions and definitions in order to properly enable the jury to render a verdict. Tex. R. Civ. P. 277. A proper instruction must: (1) assist the jury; (2) accurately state the law; and (3) find support in the pleadings and evidence. Union Pac. R.R. v. Williams, 85 S.W.3d 162, 166 (Tex. 2002). The trial court has considerable discretion in deciding what instructions are necessary and proper in submitting issues to the jury. State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 451 (Tex. 1997). Therefore, we will not disturb the trial court's decision on which instructions to submit to the jury absent an abuse of discretion. Id.

The trial court's charge included the following broad-form submission question modeled from the Texas Pattern Jury Charges: "Did Wayne Fogus, acting for himself and his partners, commit fraud against Antonio and Rosalie Moreno?" The trial court charged the jury with the same broad-form submission question for fraud against John Moreno. The trial court also included two accompanying instructions from the Texas Pattern Jury Charges. The jury was first instructed that fraud occurs when:

(1) a party fails to disclose a material fact within the knowledge of that party;

(2) the party knows that the other party is ignorant of the fact and does not have an equal opportunity to discover the truth;

(3) the party intends to induce the other party to take some action by failing to disclose that fact; and

(4) the other party suffers injury as a result of acting without knowledge of the undisclosed fact.

The jury was next instructed that fraud also occurs when:

(1) a party makes a material representation;

(2) the misrepresentation is made with knowledge of its falsity or made recklessly without any knowledge of the truth as a positive assertion;

(3) the misrepresentation is made with the intention that it should be acted on by the other party; and

(4) the other party actually and justifiably relies on the misrepresentation and thereby suffers injury.

On appeal, appellants complain the first instruction misstated the law because it conflicts with the elements of fraud as defined by the Texas Supreme Court in Ernst & Young, L.L.P. v. Pacific Mutual Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001). Appellants do not challenge the second instruction.

We agree with appellants that the first instruction is not consistent with Ernst & Young; however, Ernst & Young dealt with a plaintiff suing an accounting firm for alleged intentional misrepresentation. In the case before us, appellees base their fraud claim on appellants' failure to disclose. The elements of an intentional misrepresentation claim are different from the elements of a failure to disclose claim. Compare Ernst & Young, L.L.P., 51 S.W.3d at 577 (listing the elements for common-law fraud in cases where plaintiffs claim intentional misrepresentation), with Custom Leasing, Inc. v. Texas Bank & Trust Co., 516 S.W.2d 138, 142 (Tex. 1974) (listing the elements of fraud in cases where defendants have a duty to disclose); see also Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges PJC 105.4 (2002). Because appellees based their fraud claim on appellants' failure to disclose, as well as their fraudulent misrepresentations, the trial court properly provided the jury with instructions on both types of fraud.

We have already concluded appellees' amended petition was properly before the trial court; therefore, the pleadings support the trial court's submission of both instructions. As to whether the evidence supports the submission of both instructions, the record on appeal does not contain the reporter's record of the trial before the jury. Therefore, we assume the evidence supports the broad-form submission of both instructions. Also, on appeal, appellants do not challenge the sufficiency of the evidence supporting the fraud question or instructions. Accordingly, appellants have not established that the trial court abused its discretion by including the broad-form submission questions on fraud and the two accompanying instructions in the jury charge.

CONCLUSION

We overrule appellants' issues on appeal and affirm the trial court's judgment.

Sandee Bryan Marion, Justice