Chapter 29-4 Motion for Leave to Amend Pleadings

• Jurisdiction: United States

29-4 Motion for Leave to Amend Pleadings

Once the point in time is reached when leave of court is required for the filing of amended pleadings, an amending party who fails to first seek leave of court does so at his own risk. A court has full discretion to reject the filing of an amended pleading by a party who fails to seek leave at a time when leave of court is required.³²

Nevertheless, assuming leave to file an amended pleading is requested, the burden remains on the objecting party to provide evidence of surprise³³ or prejudice,³⁴ and absent such a showing the court has no discretion to deny the opportunity to amend.³⁵ This is true even when the court has provided a scheduling order with a specified deadline for filing; the trial court abuses its discretion in denying leave to file an amended pleading unless the party opposing the amendment presents evidence of surprise or prejudice, or objects to an amendment that asserts a new cause of action or defense that is prejudicial on its face.³⁶ Additionally, Texas courts have held that in the absence of a sufficient showing of surprise by the opposing party, the failure to obtain leave of court when filing a late pleading may be cured by evidence in the record that the trial court actually treated the amended pleading in a manner consistent with considering it to be filed.³⁷

Not all changes to a cause of action or defense are prejudicial on their face. When the change to a cause of action or defense amounts only to a procedural formality that does not change any substantive issue for trial, it is not prejudicial on its face, and evidence of surprise or prejudice instead of a mere objection will be required to deny the amendment.³⁸ "An amendment adding a new cause of action or defense operates as a surprise and is prejudicial on its face if it: (1) reshapes the nature of the case; (2) could not have been anticipated; and (3) prejudices a party's presentation of the case."³⁹

If leave of court is required for filing, a pleading offered for filing electronically is not deemed filed until the date on which a motion for leave is granted by the court.⁴⁰

Obviously, any kind of pleading amendment requested in the midst of trial will be offered in conjunction with a motion to the court for leave to amend, although the court's extent of discretion will vary depending on whether the offer is based on trial by consent, a trial amendment other than for trial by consent, or a supplementation of pleadings in response to...