Although it does not come up as often as it did in the early 1990s, the issue of whether an amended or supplemental pleading causes surprise or prejudice to the opposing party still arises. Texas Rules of Civil Procedure 63 and 66 governs amended pleadings and trial amendments.
Generally, a trial court does not have discretion to refuse an amendment filed within seven days of the date of trial 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 would be considered prejudicial on its face. See Chapin v. Chapin, Inc. v. Texas Sand & Gravel Co., 844 S.W.2d 664, 665 (Tex. 1992). This lack of discretion also applies to trial amendments and the same test is applied to trial amendments. See State Bar of Tex. v. Kilpatrick, 874 S.W.2d 656, 658 (Tex. 1994). The proper manner to challenge the amended pleadings is to file a motion to strike and a motion for continuance based on surprise or prejudice. Texas Rule of Civil Procedure 66 specifically states that a court may grant a postponement to enable the objecting party to meet such evidence.
Under Texas law, three things must be shown to demonstrate that an amendment is prejudicial on its face. The amendment must (a) assert a new substantive matter that reshapes the nature of the trial itself; (b) the opposing party could not have anticipated the matter in light of the development of the case up to the time the amendment was requested; and (c) the amendment would detrimentally affect the opposing party’s presentation of the case. See Smith Detective Agency & Nightwatch Service, Inc. v. Stanley Smith Sec. Inc., 938 S.W.2d 743, 749 (Tex. App.- Dallas 1996, writ denied), citing, State Bar of Tex. v. Kilpatrick, 874 S.W.2d 656, 658 (Tex. 1994). The party challenging the amendment (or supplement) has the burden of proof to show surprise or prejudice to overcome Texas Rule of Civil Procedure 63’s (and under TRCP 66) prescription that amendments are allowed seven days before trial by meeting the three elements listed above. If the party challenging the amendment cannot meet all three elements, the motion to strike should be denied. See State Bar of Tex. v. Kilpatrick, 874 S.W.2d 656, 658 (Tex. 1994).
Texas has come a long way in reducing surprise at trial. Texas Rules of Civil Procedure 63 and 66 do require that a party that is truly surprised or prejudiced by an amendment to prove it. It is not enough to state that a party challenging the amendment is prejudiced or surprised, there must be more. Filing a motion to strike and a motion for continuance protects your client because should the motion to strike be denied, the continuance should be granted. The opinions in this blog are solely the author’s and any comments, suggestions or replies should be sent to firstname.lastname@example.org.