Randle v. NCNB Texas Nat. Bank

Decision Date24 June 1991
Docket NumberNo. 05-90-01083-CV,05-90-01083-CV
Citation812 S.W.2d 381
PartiesMarvin RANDLE, Dewayne Randle, and Randle Builders, Inc., Appellants, v. NCNB TEXAS NATIONAL BANK, Appellee.
CourtTexas Court of Appeals

John P. Knouse, Dallas, for appellants.

Lindy F. Jones, Laura L. Worsham, Dallas, for appellee.

Before ENOCH, C.J., and CHADICK 1 and CARVER, 2 JJ.


CHADICK, Justice (Retired).

This is an appeal from a summary judgment in a suit to recover deficiencies occurring upon foreclosure of secured real estate notes and associated relief. We modify the judgment of the trial court, and as modified, affirm.

As plaintiff, NCNB Texas National Bank, N.A. [NCNB] sued Marvin Randle, 3 Dewayne Randle, and Randle Builders, Inc. [collectively "the Randles" hereinafter] as defendants. Final judgment was entered in favor of NCNB on May 21, 1990; thereafter on June 7, 1990, Marvin Randle filed a petition in the United States Bankruptcy Court, thereby staying further proceedings as to him.

The Randles have raised four points of error; clarity will be aided by considering the points out of numerical order. The Randles' third point of error is that the trial court abused its discretion by refusing to permit them to file a cross-action. The parties agree that the pleading in question was technically a counterclaim, but it will be referred to as a cross-action in the discussion that follows.

NCNB's motion for summary judgment was filed on November 22, 1989, and notice was given to the Randles. Approximately three months later, the Randles filed their Second Original Answer and on the next day filed the cross-action in question. At that time, NCNB's motion for summary judgment was set for hearing on March 1, 1990. Copies of the Randles' pleadings were not served on plaintiff's attorneys, but they became aware of the instruments in the court's file jacket and responded to them. These pleadings were filed without leave of court and without the consent or written agreement of counsel for NCNB.

The record in this Court contains no statement of facts or bills of exceptions. However, along with other material, the transcript brings forward the following: (a) the Randles' First Original Amended Answer, filed January 19, 1990; (b) their Second Amended Original Answer, filed February 21, 1990; (c) their original cross-action, filed February 22, 1990; and (d) their motion for leave to file a trial amendment to their First Amended Original Answer, filed March 1, 1990. The record before this Court also includes: (1) NCNB's objection to and request to strike the Randles' Second Original Answer and original cross-action, filed February 28, 1990; (2) the court order striking the Randles' Second Amended Answer and original cross-action, entered April 10, 1990; and (3) the order striking the Randles' responses to NCNB's motion for summary judgment, entered April 25, 1990.

The file date endorsed on the Randles' cross-action shows it was filed seven days prior to the trial date. (Such marking on the Randles' second amended answer shows it to have been filed less than seven days prior to the trial date.) Neither of the pleadings are shown to have been filed fourteen days before trial date. Texas Rule of Civil Procedure 63 and Dallas Local Court Rule 1.9 govern the filing of the Randles' pleadings under discussion. Rule 63 contains two prerequisites to an incontestable filing. First, pleadings such as these under consideration shall be filed at such time "as not to act as a surprise to the opposite party." Second, if a party desires to file such pleading within seven days of the date of trial, leave of court must first be obtained. The Rule 63 seven-day time frame was expanded to fourteen days prior to trial by the then in-effect Local Rule 1.9, which provides "except by written agreement of all counsel of record, no amendment to a pleading shall be filed less than fourteen (14) days prior to the date a case is set for trial."

On appeal, the burden of demonstrating trial court error in refusing to permit filing of an amended pleading under Rule 63 rests upon the party contending the action was not justified. Hardin v. Hardin, 597 S.W.2d 347, 349-50 (Tex.1980); Brown Lex Real Estate Dev. Corp. v. American Nat'l Bank-South, 736 S.W.2d 205, 206 (Tex.App.--Corpus Christi 1987, writ ref'd n.r.e.); Plata v. Guzman, 571 S.W.2d 408, 411 (Tex.Civ.App.--Corpus Christi 1978, writ ref'd n.r.e.).

The record under review does not disclose evidence, procedure, or circumstances showing the judge erred in refusing to permit the Randles to file their cross-action (as well as their second amended original answer) on grounds that the pleadings in question operated as a surprise to NCNB. On appeal, it must be presumed the trial court did not abuse its discretion in refusing to permit filing of an amended pleading in the absence of a statement of facts or bill of exception showing the facts relevant to presentation of the pleading. Hardin, 597 S.W.2d at 350 (Campbell, J., concurring); Herrin Transp. Co. v. Parker, 425 S.W.2d 876, 878 (Tex.Civ.App --Houston [1st Dist.] 1968, writ ref'd n.r.e.). Should the record have been otherwise as to Rule 63, there is likewise a void in proof of compliance with Local Rule 1.9. The Randles have not questioned the local rule's validity. 4 No abuse of discretion is shown. The Randles' third point of error is overruled.

Preliminary to discussion of the Randles' second point of error, it must be determined what, if any, pleadings were before the trial court at the time summary judgment was entered. The trial court not only refused to permit the filing of the Randles' cross-action, but also ordered the Randles' second amended answer stricken from the record. NCNB argues that "once the second amended original answer was stricken, defendants [Randles] had no pleadings on file."

NCNB's position is based upon its interpretation of the provisions of Texas Rule of Civil Procedure 65. The rule provides that an amended pleading "entire and complete in itself" becomes a substitute for the pleading it replaces. NCNB argues that when the Randles filed their second amended original petition, their first amended original petition was superseded and no longer constituted a viable part of the record. No case authority is cited in support of NCNB's argument. Rule 65 reads:

Unless the substituted instrument shall be set aside on exceptions, the instrument for which it is substituted shall no longer be regarded as a part of the pleading in the record of the cause, unless some error of the court in deciding upon the necessity of the amendment, or otherwise in superseding it, be complained of, an exception be taken to the action of the court, or unless it be necessary to look to the superseded pleading upon a question of limitation.

TEX.R.CIV.P. 65.

One Court of Civil Appeals, in discussing the status of superseded pleadings, uses this language:

Under the provisions of Rule 65, T.R.C.P., when the plaintiff's second amended original petition was stricken, such action had the effect of restoring as a live pleading plaintiff's first amended original petition, which was a sufficient pleading, unless exceptions should be sustained to it, and in that event the plaintiff's original petition would be restored as a live pleading, on which he would have a right to go to trial unless this pleading was also stricken.

Vordenbaum v. Ackermann, 393 S.W.2d 927, 929 (Tex.Civ.App.--San Antonio 1965), aff'd, 403 S.W.2d 362 (Tex.1966).

In affirming, the Texas Supreme Court said:

Undoubtedly, the second amended original petition was defective in the particulars pointed out by defendants' motion.... However that may be, the only pleading which was stricken was the second amended original petition and if plaintiff decided not to file another amendment, such decision did not render the cause subject to dismissal. As pointed out by the Court of Civil Appeals, the trial court did not order a repleader and plaintiff has violated no order of the court. The ground set forth in the motion to strike related to form rather than substance and it was not contended that the petition failed to state a cause of action.

Vordenbaum, 403 S.W.2d at 363. Here there is no contention that the Randles' first amended original petition did not state a cause of action; it undertook to state two and no exception was urged. Reason and the cited authority supply credible grounds for holding the Randles' first amended original petition should and will be treated as a viable and effective pleading at the time of trial.

The Randles' second point of error is that a summary judgment was precluded by the existence of a genuine issue of fact raised by evidence supporting their defense of promissory estoppel pleaded in their first amended original answer. Their response to NCNB's motion for summary judgment specified that:

A factual issue exists as to whether Plaintiff, NCNB TEXAS is estopped to enforce the promissory notes and/or guarantee agreements ... by reason of an agreement and representations made by representatives of Plaintiff renegotiating and restructuring the terms of [n]otes ... prior to foreclosure, which were relied upon by Defendants to their legal detriment. Specific reference is given to the Affidavits of Daniel Schreimann, ... MARVIN RANDLE, DEWAYNE RANDLE, and Randy Randle....

The fact issue exists as to whether Plaintiff acted in bad faith in foreclosing upon the property securing [n]otes ... referred to above after entering into an Agreement to restructure and renegotiate the terms of the notes.

The Randles' point of error and argument under it narrows their contentions to the issue of whether their summary judgment evidence tended to prove they substantially relied upon NCNB's alleged promises to their detriment. "The requisites of promissory estoppel are: (1) a promise, 2) foreseeability of reliance thereon by the promisor, and (3) substantial reliance by...

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