Chapter 29-1 Distinguishing Between Amended and Supplemental Pleadings

• Jurisdiction: United States

29-1 Distinguishing Between Amended and Supplemental Pleadings

When we speak of "amending pleadings," the term is often used generically to encompass amended pleadings, supplemental pleadings, and trial amendments, and sometimes even trial by consent, but these are not synonymous terms.

Supplemental pleadings supplement rather than replace a prior pleading, and their function is limited to responding to a new allegation of another party.¹ "Ordinarily, a plaintiff's supplemental petition will assert special exceptions, general denials and allegations of new matters not before alleged, in reply to allegations made by the defendant. However, an exception to this rule exists if the necessity of adding a new party arises from facts pled in a defendant's 'defensive pleading.'"² The prior pleading that is being supplemented and the new supplemental pleading together constitute the "live pleadings" of the party.³

In contrast, amended pleadings are not limited to being responsive to something pleaded by an opponent, and they replace rather than simply supplement a prior pleading.⁴ The purpose of an amended pleading is to perfect a prior pleading by adding or withdrawing or correcting something, or to plead an additional claim or defense⁵ or add a new party.⁶ Since an amended pleading is expected to be entire and complete in itself, it should repeat any information from the pleading being superseded which the pleader desires to continue in effect.⁷ This is particularly important for plaintiffs with regard to continuing to include any party defendants in the pleading; the omission of a party defendant from an amended pleading can effectively nonsuit the omitted defendant, which can be fatal to the claim if limitations have already expired.⁸

"While an amended pleading must be complete within itself and is substituted for the pleading amended, Rule 64, Texas Rules of Civil Procedure, a trial amendment is for the purpose of enlarging the pleadings to meet objections to evidence as not being within the scope of the pleadings and to cure any defect, fault or omission in a pleading, either of form or substance, which is called to the attention of the court during the trial, Rule 66, Texas Rules of Civil Procedure, and is supplemental to and in amplification of the current pleading of the party filing such trial amendment."⁹

Trial by consent refers to the circumstance where one party has effectively acquiesced in the trial of an unpleaded issue and thereby entitled the...