Cases Dealing With Filing a Late Pleading In Texas
Rule 63, entitled "Amendments and Responsive Pleadings" states:
Parties may amend their pleadings . . . as they may desire by filing such pleas with the clerk at such time as not to operate as a surprise to the opposite party; provided, that any pleadings, responses or pleas offered for filing within seven days of the date of trial or thereafter, or after such time as may be ordered by the judge under Rule 166, shall be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite party. TEX. R. CIV. P. 63 (emphasis added).
Rule 166, governing the pretrial conference, provides, "the court shall make an order that recites . . . the amendments allowed to the pleadings, [and] the time within which same may be filed . . . ." TEX. R. CIV. P. 166.
Despite the seemingly unambiguous language of these rules which suggests that the burden of obtaining permission to file an untimely pleading is on the party seeking leave, case law indicates that the trial court may be deemed to have considered an untimely pleading even where the late filing party failed to request leave.
Texas appellate courts apply a liberal interpretation in determining whether a trial court granted leave to file pleadings beyond the prescribed deadline. See Goswami v. Metropolitan Sav. and Loan, 751 S.W.2d 487, 490 (Tex. 1988) (finding trial court granted leave to file late pleading where pleading was filed within seven days of summary judgment proceeding, which is considered a trial within the meaning of Rule 63); Johnson v. Rollen, 818 S.W.2d 180, 183 (Tex. App.--Houston [1st Dist.] 1991, no writ) (finding trial court granted leave to file late pleading where pleading was filed after deadline imposed by docket control order).
Based on the Texas Supreme Court's holding in Goswami, we must presume the trial court granted leave to file a late pleading even though the filer failed to request leave when:
(1) the record fails to show that the trial court did not consider the amended pleadingl
(2) there is not a sufficient showing of surprise or prejudice on the part of the opposing party. See Goswami, 751 S.W.2d at 490; Rose v. Kober Financial Corp., 874 S.W.2d 358, 361 (Tex. App.--Houston [14th Dist.] 1994, no writ); Johnson, 818 S.W.2d at 183.
In determining if the first prong of the Goswami presumption is satisfied, the reviewing court is to consider whether the amended petition was part of the record before the trial court and whether the judgment states that the trial court considered all the pleadings on file. See Goswami, 751 S.W.2d at 490.
If both of these questions are answered in the affirmative, the first prong of the test is met. See id.