Chapter 29-7 Post-Verdict Amendment of Pleadings

• Jurisdiction: United States

29-7 Post-Verdict Amendment of Pleadings

A post-verdict amendment to the pleadings may be granted before judgment, absent surprise or prejudice.⁵⁶ Neither Tex. R. Civ. P. 63 nor 66 make any distinction between a pre-verdict and a post-verdict amendment.⁵⁷ The standard for a post-verdict amendment remains the same as for pretrial and trial amendments: "A court may not refuse a [post-verdict] trial amendment unless (1) the opposing party presents evidence of surprise or prejudice, or (2) the amendment asserts a new cause of action or defense, and thus is prejudicial on its face."⁵⁸

Once judgment has been rendered, a trial court can no longer grant a trial amend-ment.⁵⁹ But post-trial amendments have been granted in a variety of circumstances, including to conform the pleadings to the amount of the judgment,⁶⁰ to permit recovery of prejudgment interest,⁶¹ to incorporate a matter tried by consent,⁶² to add a new cause of action,⁶³ to plead a specific basis for punitive damages,⁶⁴ to allow the addition of a specific denial to support a defensive issue,⁶⁵ to delete a severable claim in order to bring a case within the jurisdictional limits of the trial court,⁶⁶ and to add a personal representative of the patient's estate as plaintiff for a survival claim after limitations.⁶⁷

The general rule allowing a post-trial amendment to conform the pleadings to the damages found by the jury, based on the Texas Supreme Court's Greenhalgh opin-ion,⁶⁸ is not applicable to expedited actions governed by Discovery Level 1.⁶⁹ Since the amount of a judgment in an expedited action is capped for a plaintiff at $100,000,⁷⁰ and since plaintiffs have time limits on when they can plead out of the expedited actions process,⁷¹ the Greenhalgh rule is not available to plaintiffs to allow a post-trial amendment for increasing the pleaded amount of damages in an expedited action.⁷² Presumably the Greenhalgh rule continues to be available to counter-claimants since they are not limited by a $100,000 cap.⁷³

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Notes:

^[56] Krishnan v. Ramirez, 42 S.W.3d 205, 225 (Tex. App.—Corpus Christ 2001, pet. denied).

^[57] Wal-mart Stores, Inc. v. McKenzie, 997 S.W.2d 278, 280 (Tex. 1999).

^[58] Libhart v. Copeland, 949 S.W.2d 783, 797 (Tex. App.—Waco 1997, no writ) (citing State Bar of Tex. v. Kilpatrick, 874 S.W.2d 656, 658 (Tex. 1994)).

^[59] Mitchell v. La Flamme, 60 S.W.3d 123, 132 (Tex. App.—Houston [14th Dist.] 2000, no pet.).

^[60] Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex...