Ortale v. City of Rowlett

696 S.W.2d 640, 1985 Tex. App. LEXIS 7155

• Court: Court of Appeals of Texas
• Decided: July 24, 1985
• Docket: 05-84-00750-CV
• Status: Published

Opinions

AKIN, Justice.

Michael Ortale appeals a judgment on a jury verdict in his favor against the City of Rowlett, contending that the trial court erred in refusing to allow him to file a trial amendment specifying future medical expenses and physical impairment. We agree with this contention and hold that the trial judge abused his discretion in denying Or-tale leave to file his trial amendment. Accordingly, we reverse the judgment of the trial court.

There is little factual dispute in the record. Ortale and his wife were riding a motorcycle together on Princeton Road in the City of Rowlett and encountered an open ditch across the road, opened by the City. Both Ortale and his wife suffered personal injuries and sued the City claiming negligence on the City’s part which was the proximate cause of their injuries. Or-tale pleaded his damages specifically as: (1) past medical expense; (2) past and future mental anguish and pain; and (3) future loss of earning capacity, plus a general prayer for relief. At trial Ortale and his witnesses were permitted, over the City’s consistent objections, to testify to additional special damages (future medical expenses and physical impairment) and the jury found these special damages, along with other findings under the charge of the court. On the City’s motion, the court disregarded the findings of the jury as to these unpleaded special damages and entered judgment for Ortale on the remainder of the findings.

Ortale contends on appeal that the trial court erred in refusing to allow him to file a trial amendment encompassing future medical expenses and physical impairment. We agree. The rule in Texas concerning trial amendments is stated in TEX. R.CIV.P. 66:

If evidence is objected to at the trial on the ground that it is not within the issues made by the pleading, or if during the trial any defect, fault or omission in a pleading, either of form or substance, is called to the attention of the court, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him in maintaining his action or defense upon the merits. The court may grant a postponement to enable the objecting party to meet such evidence, [emphasis added]

Rule 66 clearly places the burden of proving prejudice upon the party objecting to the trial amendment.

It is incumbent upon the objecting party to state in his objection grounds for his claim of prejudice and surprise. The supreme court has stated that a trial court should allow amendments “if to do so will subserve the merits of the action and the other party fails to satisfy the court that the amendment will prejudice him in maintaining his action or defense on the merits.” Vermillion v. Haynes, 147 Tex. 359, 215 S.W.2d 605, 609 (1948) (emphasis added); Chambless v. Barry Robinson Farm Supply, 667 S.W.2d 598, 601 (Tex. App.-Dallas 1984, no writ). See also Hardin v. Hardin, 597 S.W.2d 347, 350 (Tex. 1980) (Campbell, J., concurring) (absent showing of surprise, trial court has no discretion whether to grant leave to file trial amendments) Williams v. Back, 624 S.W.2d 272, 274 (Tex.App.—Austin 1981, no writ) (leave to file trial amendments shall be granted freely unless party resisting amendments makes showing of surprise or prejudice). Accord Fenno v. Jacobe, 657 S.W.2d 844, 848 (Tex.App.—Houston [1st Dist.] 1983, writ ref’d n.r.e.); Shook v. Republic National Bank of Dallas, 627 S.W.2d 741, 750 (Tex.App.—Tyler 1981), rev’d on other grounds, 653 S.W.2d 278 (Tex.1983).

Furthermore, the supreme court held in Vermillion v. Haynes that the trial judge’s refusal to permit an amendment conforming the pleadings to the jury’s verdict was an abuse of discretion. 215 S.W.2d at 609. Post-verdict trial amendments have been allowed to make the pleadings conform to the verdict in various situations. See Santa Rosa Medical Center v. Robinson, 560 S.W.2d 751 (Tex.Civ.App.—San Antonio 1977, no writ); American Produce & Vegetable Co. v. Campisi’s Italian Restaurant, 533 S.W.2d 380 (Tex.Civ.App.—Tyler 1975, writ ref’d n.r.e.); Tom’s Toasted Peanuts, Inc. v. Doucette, 469 S.W.2d 399 (Tex.Civ. App.—Beaumont 1971, writ ref’d n.r.e.); Shaw v. Tyler Bank & Trust Co., 285 S.W.2d 782 (Tex.Civ.App.— Texarkana 1956, writ ref’d n.r.e.).

Although the City objected to the proposed trial amendment, the record does not show that the City would have been prejuduced or surprised had the trial court allowed the amendment. To the contrary, the record is replete with evidence that the City was well aware that future medical expenses and physical impairment were elements of Ortale’s damages. The City deposed one of Ortale’s medical witnesses prior to trial who testified concerning these matters. Further, the City presented to the jury an expert witness who testified about future medical matters, and before trial Ortale presented to the City his proposed special issues, which included issues on future medical expenses and physical impairment. We note also that Ortale’s prayer for damages in his petition is a general prayer and that his proposed trial amendment did not seek to increase the amount of damages sought, but only to specify the type of damages to be included in the original total pleaded.

A different question would be presented if the City, in objecting to the trial amendment, had shown that its pretrial preparation, including depositions and discovery, was made in reliance on the specific allegations of injury in the trial petition and that it had omitted to pursue lines of investigation that it otherwise would have made. Since the City had the burden to show surprise, we cannot assume a surprise that it did not specifically assert.

We hold that Ortale was entitled to file a trial amendment under rule 66 not only because the City failed to show surprise, but also because the City was not in fact surprised. Accordingly, we hold that the trial court abused its discretion in refusing the trial amendment. The trial court’s judgment is reversed and remanded with instructions to the trial court to allow the pleadings to be conformed to the issues submitted to the jury, after which judgment shall be rendered for Ortale on the jury’s verdict.

GUITTARD, C.J., and STEPHENS, SPARLING, VANCE, GUILLOT and MA-LONEY,- JJ., join in the majority opinion.