Plata v. Guzman

• Decision Date: 21 September 1978
• Docket Number: No. 1303,1303
• Parties: Otila G. PLATA et al., Appellants, v. Teofilo GUZMAN et ux., Appellees.
• Court: Texas Court of Appeals

Page 408

571 S.W.2d 408

Otila G. PLATA et al., Appellants, v. Teofilo GUZMAN et ux., Appellees.

No. 1303.

Court of Civil Appeals of Texas, Corpus Christi.

Sept. 21, 1978.

Rehearing Denied Oct. 12, 1978.

Polk Hornaday, Harlingen, for appellants.

J. L. Covington, Brownsville, for appellees.

OPINION

YOUNG, Justice.

In this boundary dispute case the defendants appeal from the trial court's judgment granting the plaintiffs title to and possession of a strip of land that lies between and adjoins tracts owned by the contending parties.

Teofilo and Natividad Guzman sued Otila and Eustolia Plata seeking to establish the boundary between land owned by the Guzmans and the land owned by the Platas. Trial was to the court without a jury. The Platas appeal from the resulting judgment favorable to the Guzmans. We affirm.

The evidence indicates that the Guzmans own a ten and one-half acre tract of land which shares a common border with a fourteen and one-half acre tract of land owned by the Platas. The Guzman property is to the north of the Plata property. The Guzmans acquired their ten and one-half acre tract in 1972 from Mr. Adolph Thomae, Jr., who had owned and farmed the tract for two years. No disputes about the boundary between the property of Mr. Thomae and that of the Platas occurred during this two-year period.

In October of 1973 Ms. Eustolia Plata spoke to Mrs. Guzman and asked if she might occupy a strip of land four or five feet wide along the Guzmans' southern boundary in order to erect a cattle passage. Mrs. Guzman refused her request, and in November of 1973, the Guzmans having become concerned about their rightful boundary, asked R. P. Hanson, a professional engineer, to survey their property. The survey showed that the Platas had erected a fence about fifteen feet inside and along the entire length of the southern boundary of the Guzman property. This reduced the Guzmans' usable property to approximately ten acres. According to the directions of their surveyor, the Guzmans then built a fence on the south side of what the Platas called their fence and along the Guzmans' claimed border. This suit resulted, and the trial court granted judgment to the Guzmans for their property as described above and as shown to them by their surveyors.

Findings of fact and conclusions of law were neither requested nor filed. Appellants did bring forward a statement of facts and therefore we must presume upon appeal that the trial judge found every fact necessary to sustain the judgment, provided such fact is raised by the pleadings and is supported by the evidence. Further, in considering the sufficiency of the evidence in support of presumed findings, we must construe the evidence in the light most favorable to the judgment and disregard all evidence to the contrary and indulge every legitimate conclusion which tends to uphold the judgment. Texas Construction Associates, Inc. v. Balli, 558 S.W.2d 513, 517 (Tex.Civ.App. Corpus Christi 1977, no writ).

Appellants bring seven points of error. In appellants' point 2 they contend that the trial court erred in refusing to allow them to amend their pleadings in order to allege that they had acquired title to the disputed property by adverse possession.

Appellees filed this suit on February 3, 1977, and appellants answered with a plea in abatement and a general denial on March 7, 1977. On April 21, 1977, the court held a hearing and overruled the plea in abatement. At that same hearing the court orally notified both parties that the case was set for trial at 2:00 p. m. on May 26, 1977. An order was entered of record reflecting the denial of the plea in abatement as well as the trial setting. The order notes that copies of the order were to be sent by the clerk to the parties.

At 2:00 p. m. on May 26, 1977, Mr. Covington, representing the appellees, appeared for trial but Mr. Hornaday, representing the appellants, failed to appear. The trial judge then requested the bailiff to call Mr. Hornaday. Even so, the trial commenced and proceeded in Mr. Hornaday's absence until 2:50 p. m., with Mr. Covington having questioned certain subpoenaed witnesses. At 3:20 p. m. the trial resumed with Mr. Hornaday present. He argued at this time that he had received no written notification of the trial, but he did admit that he was present at the pre-trial hearing when the time and date of trial was set. Whereupon the court summarized the testimony of the witnesses who testified in Mr. Hornaday's absence and then recessed the case until 9:30 a. m. the following day, May 27, 1977.

The following morning, appellants filed with the clerk an amended pleading which included a limitations defense. After announcing ready for trial, Mr. Hornaday asked leave of the court to amend the appellants' answer in order that they might plead the additional defense of limitations. Counsel for appellees objected on the ground of surprise. The court refused leave to file the requested amended answer.

Though Rules 63 and 66, T.R.C.P., which deal with pleading amendments should be liberally construed in the interest of justice, it is well established that the action of the trial court in granting or refusing the right to amend the pleadings within the seven-day period preceding trial is a matter within the discretion of the trial judge, and his decision will not be disturbed by an appellate court unless there is a clear showing of an abuse of discretion. Roeber v. DuBose, 510 S.W.2d 126, 128 (Tex.Civ.App. Corpus Christi 1974, no writ). The burden is on the complaining party to show that the trial court's action in granting or denying leave to file the amended pleading within the seven-day period before trial was either arbitrary or unjustified by the rules. Herrin Transportation Co. v. Parker, 425 S.W.2d 876, 878 (Tex.Civ.App. Houston (1st Dist.) 1968, writ ref'd n. r. e.). 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 or acted arbitrarily. Roeber v. DuBose, supra at 129.

In this connection, where it appears that the new matter was known to the parties seeking to file the amendment, or to their counsel, or by exercising reasonable diligence, it could have been known at such time as would have enabled them to include it in their former pleadings, or if it injects new matter, the request should be denied. Lightner v. McCord, 151 S.W.2d 362, 367 (Tex.Civ.App. Amarillo 1941, no writ); 2 McDonald, Texas Civil Practice § 8.07 n. 59 (1970).

It can hardly be disputed that the limitations defense would have injected new matter into the trial and required a reshaping of plaintiff's case. See McHone v. McHone, 449 S.W.2d 488, 490 (Tex.Civ.App. Waco 1969, writ dism'd). Limitations is an affirmative defense which must be specially pled. Rule 94, T.R.C.P. Appellants gave no explanation why it was not pled in their prior pleadings. Appellants, moreover, advanced no reason why the facts as to this defense were not available when this suit was filed. Mr. Hornaday did state that he was ill in the interim between the pre-trial hearing and the trial, but gave no reason why he could not have presented the defense at sometime prior to one day after the trial on the merits had begun. We think that the appellants have failed to demonstrate that the trial court's ruling was arbitrary, and that they have failed to show that the trial court...