# Hardin v. Hardin

> Texas Supreme Court · April 2, 1980 · 23 Tex. Sup. Ct. J. 306

URL: https://www.frixlaw.com/law-library/cases/9768223

## Case

- **Full name:** Joan Murle HARDIN, Petitioner, v. Lavoyd Wayne HARDIN, Respondent
- **Court:** Texas Supreme Court
- **Decided:** April 2, 1980
- **Citations:** 23 Tex. Sup. Ct. J. 306; 597 S.W.2d 347; 1980 Tex. LEXIS 327
- **Precedential status:** Published
- **Opinion:** Concurrence by Campbell
- **Judges:** Denton, Campbell, Steakley
- **Cited by:** 263 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9768223

## How later opinions describe it (automated extraction)

- concluding that amendment was prejudicial on its face where “[the] amendments could not have been anticipated by the plaintiff, and had they been permitted, they would have prejudiced the plaintiff’s presentation of the case and resulted in unnecessary delay”
- stating that a trial court’s ruling 8 under Rule 63 will not be disturbed without a clear showing of an abuse of discretion
- holding amendment was not proper or mandatory because amendment was substantive in that it added affirmative defenses and, thus, changed the nature of the trial itself
- holding that a trial court’s ruling on an amended pleading is reviewed under an abuse of discretion standard

## Opinion text

CAMPBELL, Justice,
concurring.
I concur in the result only. It is provided in Rule 63 1 that leave to file amended pleadings within seven days “shall be granted by the judge unless there is a showing that such amendment will operate as a surprise to the opposite party.”
Black’s Law Dictionary states that “shall” as used in statutes, contracts or the like, generally means imperative or mandatory. Webster’s Third New International Dictionary states that “shall” is used in laws, regulations or directives to show what is mandatory. The common use of the word is to express a command or directive. The portion of Rule 63 which states “which leave shall be granted” is a mandatory directive to the court to grant leave to file the amended pleadings “unless there is a showing of surprise.” The trial court has no discretion whether to grant leave to file unless there is a showing of surprise.
An objection is not a showing. I do not suggest that appellant should have included the words “I am surprised” in his objection, but, even if he had used those words it would not have been a showing of anything.
Under Rule 63, the burden of convincing the trial court that the late filing of an amended pleading will operate as a surprise rests on the party resisting the filing of the pleadings. However, the burden of demonstrating that the trial court erred in refusing to permit the amendment rests on the party contending that such action was not justified by the rules. The fact that the court refused to permit the amendment is not sufficient. The party tendering the late pleadings has the burden of showing, either by the statement of facts or by bill of exception, the facts attending the presentation of the amendment and the action of the trial court in refusing to permit it to be filed and considered. In the absence of such a showing the appellate court must presume the trial court did not abuse its discretion. Herrin Transportation Co. v. Parker, 425 S.W.2d 876 (Tex.Civ.App.—Houston [1st Dist.] 1968, writ ref’d n. r. e.). In Herrin, the proposed amended pleading appears in the transcript. Endorsed on the amendment is the notation “leave to file denied” and the signature of the trial judge. Neither the objections of the party resisting the filing nor the reasons for the actions of the trial court appears in the statement of facts or the transcript. The Court of Civil Appeals in the Herrin case correctly held that in the absence of a showing, either in the statement of facts or by bill of exception, of the facts attending the presentation of the amendment and the action of the trial court in refusing to permit *351 it to be filed and considered, this Court must presume that the trial court’s action was correct under the circumstances, and that he did not abuse his discretion.
The same circumstances occurred in Patino v. Texas Employers Insurance Association, 491 S.W.2d 754 (Tex.Civ.App.—Austin 1973, writ ref’d n. r. e.). The tendered trial amendment was included in the transcript and bears the notation “Refused,” the trial judge’s signature, and the time of the refusal. The statement of facts did not mention that the trial amendment was offered, the objections of the party resisting the filing, or the reasons for the action of the trial court. The Patino court correctly held that in the absence of a showing in the statement of facts or by bill of exception the appellate court must presume the trial court did not abuse its discretion.
In Plata v. Guzman, 571 S.W.2d 408 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d n. r. e.), defendant, Guzman, in a non-jury trial, attempted to file a trial amendment (Rule 66) asserting for the first time the defense of limitations. Plaintiff objected on the ground of surprise but did not make any showing of surprise. The trial court refused to allow the amended pleading to be filed. The Plata opinion, like the majority opinion, erroneously states that the filing of a trial amendment is a matter within the discretion of the trial court and his decision will not be disturbed by an appellate court unless there is a clear showing of abuse of discretion.
That court, for authority, cites one of its own cases, Roeber v. Dubose, 510 S.W.2d 126 (Tex.Civ.App.—Corpus Christi 1974, no writ), for the proposition that something more than a request and a refusal must appear in the record before an appellate court may properly say that a trial court abused its discretion. Roeber is wrong because it relies on Patino v. Texas Employers Insurance Association, supra, for authority. Patino does not make that holding. It correctly holds that:
Under Rule 63 the burden of convincing the trial court that the late filing of an amended pleading will operate as a surprise rests on the party resisting the filing of that pleading, as does the burden of showing prejudice in case of a trial amendment offered under Rule 66. However, the burden of demonstrating that the trial court erred in refusing to permit the amendment rests on the party contending that such action was not justified by the rules. The mere fact that the court refused to permit the amendment is not sufficient.
In the absence of a showing either in the statement of facts or by bill of exception, of the facts attending the presentation of the appellant’s trial amendment and the action of the trial court in refusing to permit it to be filed, this Court will presume that the trial court did not abuse his discretion in denying the amendment. Herrin Transportation Co. v. Parker, 425 S.W.2d 876 (Tex.Civ.App.—Houston [1st Dist.] 1968, writ ref’d n. r. e.).
I disagree with the holdings in Plata refusing to allow the trial amendment to be filed. In that case the party did nothing more than object on the ground of surprise. There was no showing of harm, prejudice or surprise. The statement of facts shows the facts attending the presentation of the amendment and the action of the trial court in refusing to permit it to be filed and considered. All that is shown is a tender, objection on the ground of surprise and the court’s refusal. The objecting party did not attempt to meet the burden of showing of prejudice as required by Rule 66, Herrin, supra, and Patino, supra.
The cases show the same rule is applied to Rule 63 and Rule 66. In Vermillion v. Haynes, 147 Tex. 359 , 215 S.W.2d 605 (1948), this Court reviewed the refusal of a trial court to permit a trial amendment to be filed raising the defense of limitations. This Court, after quoting Rule 66, stated:
The language of that rule, as applied to the facts of this case, convinces us that the trial court erred in striking the trial amendment. The rule directs that the court shall “freely” allow an amendment if to do so will subserve the “presentation *352 of 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. Here the respondents’ objections were that the petitioner had neglected for more than a year to file the amendment, that it was tendered after the evidence was closed and without previous notice, and that it was without merit or support in the evidence and would prevent equity being done. It will be observed that these objections carried neither suggestion nor hint that the respondents were in any manner surprised or unprepared to meet the issues raised by the amendment; nor did they suggest that, in this trial without a jury, the amendment would otherwise prejudice them in maintaining their action on its merits. The statement that “it was without merit” and “would prevent equity being done” amounted to no more than an opinion or conclusion of the pleader, the soundness of which may well be open to question. Under those circumstances, we think that both the spirit and intent of Rule 66 required that the amendment be permitted.
The majority opinion cites the case of Victory v. State, 138 Tex. 285 , 158 S.W.2d 760 (1942), for the holding that “on appeal, the trial court’s ruling will not be disturbed unless the complaining party clearly shows an abuse of discretion.” Victory v. State does not stand for the proposition that the trial court can do no wrong and may determine in its own discretion that, without a showing, a trial amendment may not be filed. In that case, the State was granted leave to file three trial amendments. Victory objected on the grounds that: “He was not apprised of the contents of the amendment until five minutes before the time set for the hearing; he was only given one hour within which to acquaint himself with the contents and to prepare to meet the issues raised; that the amendments raised new issues that they were not prepared to meet; that to re-open the case on such issues would greatly injure him; and, that they could not procure witnesses and testimony necessary to protect their interests.” The court, in its findings, found that Victory was not surprised in that the amendments set up no new matter. This Court held these amendments raised no additional issues in the cause and could not possibly result in any injury to plaintiffs. In Victory we have a tendered amendment, objections, attempts to show harm and a finding by the trial court. This Court held there was no showing of an abuse of discretion.
In the case before us, the statement of facts shows the circumstances surrounding the tendering of the pleadings and the court’s refusal. Defendant tendered the amended pleading, plaintiff objected on the basis of the seven-day rule, and the court refused the filing without stating a reason. The court allowed defendant six days within which to file pleadings and pleadings were filed within the six days, although on the last day. I would hold that the court abused its discretion in failing to allow the pleadings to be filed. However, this error is harmless as the pleadings attempted to be filed constituted a collateral attack on a final divorce judgment. As such, this judgment is not subject to a collateral attack in a subsequent suit. Faglie v. Williams, 569 S.W.2d 557 (Tex.Civ.App.—Austin 1978, writ ref’d n. r. e.).
Where discretion is allowed, it must be exercised in accordance with fixed principles or rules of law. The rule here is that leave must be granted unless there is a showing of surprise. A showing may be made from the records, by evidence or by reason. There may be surprise as a matter of law if the proposed amended pleadings assert a new and independent cause of action or defense. If there is not surprise as a matter of law, the trial court must grant leave to file unless the objecting party shows surprise. The determination of surprise must be made in accordance with the established principle that amendments are to be freely allowed. An objection that the filing violates the seven-day rule is not a showing. It may be sufficient to invite the court’s consideration that the amendment *353 constitutes surprise as a matter of law, but it is not a showing.
STEAKLEY, J., joins in this concurring opinion.
. All statutory references are to Vernon’s Texas Rules, Annotated,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9768223. Public record. Not legal advice.