Texas Rule 63 - Amending Pleadings After Verdict (Before Judgment)
Rule 63 of the Texas Rules of Civil Procedure reads as follows:
Parties may amend their pleadings, respond to pleadings on file of other parties, file suggestions of death and make representative parties, and file such other pleas 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.
In Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938 (Tex. 1990), the Supreme Court held that: it is well-established that a party may amend its pleadings after verdict but before judgment (citing TEX. R. CIV. P. 63); a party's right to amend is subject only to the opposing party's right to show surprise; and 3) an amended pleading that changes only the amount of damages sought does not automatically operate as a surprise within the contemplation of Rule 63.
Therefore, in the absence of a showing of surprise or prejudice by an opposing party, a trial court must grant leave to a party to amend its pleadings to conform to the amount of the damages requested to that awarded by the jury. Greenhalgh, 787 S.W.2d at 940-41. Smith Detective Agency & Nightwatch Serv., Inc. v. Stanley Smith Sec., Inc., 938 S.W.2d 743, 748 (Tex. App.-Dallas 1996, writ denied), holds that three conditions must occur before the trial court has any discretion to deny a requested trial amendment:
(1) the party seeking the amendment must ask the trial court's permission to file the proposed amendment and tender it for filing (must be in the record, need not be in writing);
(2) the party opposing the amendment must timely object to the amendment's filing;
(3) the party opposing the amendment must discharge its burden by evidence adduced that it would be prejudiced by filing the amendment. Id. at 748.
There is, however, a recognized exception to the third requirement, i.e., when the proposed amendment, on its face, reveals prejudice to the opposing party, then that party is relieved of its burden to adduce evidence. Id. (citing Hardin v. Hardin, 597 S.W.2d 347, 350 (Tex. 1980)).
An amendment prejudicial on its face has three defining characteristics ascertainable from the pleading itself:
(1) the amending pleading must assert a new substantive matter that reshapes the nature of the trial itself; (2) the new matter asserted must be such that it could not be anticipated by the opposing party in light of the developments in the case up to the time the amendment was requested;
(3) if the amendment were allowed, the opposing party's presentation of the case would be affected detrimentally. Smith Detective Agency, 938 S.W.2d at 749.