Fry v. Guillote, 1920

• Decision Date: 31 January 1979
• Docket Number: No. 1920,1920
• Citation: 577 S.W.2d 346
• Parties: Richard A. FRY d/b/a American Executive Realty, Appellant, v. Pamela GUILLOTE, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 346

577 S.W.2d 346

Richard A. FRY d/b/a American Executive Realty, Appellant, v. Pamela GUILLOTE, Appellee.

No. 1920.

Court of Civil Appeals of Texas, Houston (14th Dist.).

Jan. 31, 1979.

Rehearing Denied Feb. 21, 1979.

Ralph Hutchmacher, Dellinger, Lawrence & Baca, Houston, for appellant.

Robert E. Price, Lockett, Embry & Cantey, Houston, for appellee.

COULSON, Justice.

Appellant Richard A. Fry appeals from a judgment in favor of appellee Pamela Guillote after a non-jury trial in a suit to recover commissions related to the sale of real estate. We affirm.

In July of 1974 appellee, a licensed real estate sales person, was employed as a real estate agent by American Executive Realty. During her employment appellee procured several listings for the sale of homes by American Executive Realty. Four of the listings were sold by American Executive Realty after appellee had terminated her employment and gone to work for another real estate broker. In August of 1975 appellee filed this suit seeking to obtain her alleged share of the commissions received by American Executive Realty on the sale of these four properties. After a non-jury trial the trial judge granted judgment in favor of appellee in the amount of $2,184.12. ¹ Appellant appeals from that judgment.

Appellant's first point of error complains that the trial court erred in refusing on two separate occasions to allow him to amend his pleadings with a trial amendment. Shortly after the trial had begun, appellant attempted to file an amended answer alleging, under oath, that American Executive Realty was an assumed name for American Executive, Inc., a Texas corporation, and that Richard A. Fry was an employee only of American Executive Realty or American Executive, Inc. and was therefore not liable as an individual for the acts of his employer. The trial court refused to allow such trial amendments to be filed. Appellant's first point of error alleges that the judge erred in refusing to allow this trial amendment.

We note at the outset that the matter of whether to permit the filing of a trial amendment is addressed to the sound discretion of the trial court and his order will not be disturbed unless it clearly appears that he abused his discretion. Vermillion v. Haynes, 147 Tex. 359, 215 S.W.2d 605 (1948). In this case appellant attempted, after trial of the case had begun, to file a trial amendment in effect denying that appellee had sued the proper defendant. One authority has amassed some of the matters to be considered in determining whether the trial court properly exercised his discretion in granting or denying a trial amendment:

"In the matter of allowing amendments . . . pending the trial in order to meet the proof, the trial judge should allow the amendment if it appears that the new matter contained in it was not known to the party seeking to file the same or, by the exercise of reasonable diligence, he could not have ascertained the same when his former pleadings were filed, and that it does not involve new issues or inject into the case new matters which would interfere with the orderly progress of the court's docket or work injustice upon other parties. . . . However, . . . when it appears that the new matter was known to the party seeking to file the amendment, or to his counsel, or, by exercising reasonable diligence, it could have been known . . . at such time as would have enabled them to include it in his former pleadings, of if it injects new matter . . . the request should be denied."

2 R. McDonald, Texas Civil Practice § 8.04 (1970). See also Westinghouse Electric Corp. v. Pierce, 153 Tex. 527, 271 S.W.2d 422 (1951); Coffey v. Fort Worth and Denver Railway Co., 285 S.W.2d 453 (Tex.Civ.App. Eastland 1956, no writ).

Appellee's petition in this case was filed in August of 1975. Appellant's answer was filed in October of 1975 and appellant's answers to appellee's interrogatories were filed in December of 1975. Trial of the cause occurred on January 18, 1978, the date on which appellant attempted to amend his pleadings to assert that he was not liable in the capacity in which he was sued. Appellant made no showing of any reason why this matter could not have been pled in the two years between the filing of his original answer and the day of trial. Certainly he made no contention that he did not have knowledge at all relevant times that American Executive Realty was an assumed name for the corporation, and not for himself as an individual. To allow such amendment at trial would "interfere with the orderly progress of the court's docket" by requiring appellee to replead her cause against a new defendant not a party to the suit as originally filed. Thus we find that the trial court did not abuse its discretion in refusing to allow appellant to file his trial amendment after trial had begun.

Appellant cites the case of Rose v. Shearer, 431 S.W.2d 939 (Tex.Civ.App. San Antonio 1968, no writ) for the contention that Rule 67, Tex.R.Civ.P., required the allowance of his trial ...