Summary Judgment on a claim added by amended pleading filed prior to SJ hearing (7-day
rule, leave to amend presumed)
O'Kane v. Coleman (Tex.App.- Houston [14th Dist.] July 1, 2008)(Fowler)(lease law, theft liability act claim)

See Tex. R. Civ. P. 166a(c) ("Except on leave of court, the adverse party, not later than seven days prior to
the day of hearing may file and serve opposing affidavits or other written response.").  

Summary Judgment in Relation to O=Kane=s Second Amended Petition

In issue one, O=Kane contends:

[T]he trial court committed reversible and/or remand‑able [sic] error by abusing its discretion in dismissing
Appellant=s new claims and entering a final appealable order when Appellant=s new claims were brought by
Appellant filing an amended petition after Appellees filed their Motion for Summary Judgment but before the
trial court entertained the motion, and ergo, the trial court incongruously dismissed Appellant=s new claims
that were not encapsulated or addressed in the Appellees= Motion for Summary Judgment or by the Court
and the Appellees never responded or answered to the new claims and the Appellant was unassailably
prejudiced thereby.

The summary judgment was set for submission on May 2, 2006.  O=Kane filed his second amended petition
on April 26, 2006, six days before the May 2 submission date.  There is nothing in the record from which this
court can conclude O=Kane requested or received leave of the court to file his second amended petition.

Texas Rule of Civil Procedure 63 provides in part:

[A]any pleading . . . offered for filing within seven days of the date of trial or thereafter, or after such time as
may be ordered by the judge under Rule 166, shall be filed only after leave of the judge is obtained, which
leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the
opposite party.

Tex. R. Civ. P. 63.  A summary judgment proceeding is a trial within the meaning of this rule.  Goswami v.
Metro. Sav. and Loan, 751 S.W.2d 487, 490 (Tex. 1988).  Nevertheless, under the supreme court=s holding
in Goswami, we must presume the trial court granted leave to file a late pleading even though the filer failed
to request leave when:  (1) the record fails to show the trial court did not consider the amended pleading,
and (2) there is not a sufficient showing of surprise or prejudice on the part of the opposing party.  Wilson v.
Korthauer, 21 S.W.3d 573, 578 (Tex. App.CHouston [14th Dist.] 2000, pet. denied); see Goswami, 751 S.W.
2d at 490.  Both of these negatively stated factors are present in the instant case.  For the reasons set forth
in Goswami, we presume the trial court granted O=Kane leave to file his second amended petition.

A party may not be granted judgment as a matter of law on a cause of action not addressed in a summary
judgment proceeding.  Espeche v. Ritzell, 123 S.W.3d 657, 664 (Tex. App.CHouston [14th] Dist. 2003, pet.
denied) (citing Chessher v. Sw. Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983)).  Thus, when a plaintiff, in
his amended petition, asserts a new cause of action based on facts not alleged in the original petition, a
court cannot say the defendant=s motion for summary judgment contemplated and embraced the additional
claim in the amended petition. Id.  If, however, a motion for summary judgment is sufficiently broad to
encompass later‑filed claims, the movant need not amend its motion.  Id.; see Wilson, 21 S.W.3d at 579.  For
example, summary judgment is proper when a defendant has conclusively disproved an element central to all
causes of action or an unaddressed cause of action derivative of the addressed causes of action.  See
Dubose v. Worker=s Med., P.A., 117 S.W.3d 916, 922 (Tex. App.CHouston [14th Dist.] 2003, no pet.).

O=Kane does not direct this court to newly alleged material facts in his second amended petition, and we
have found none.  He contends only that he added Anew causes of action@ for AConcert of Action, Aiding
and Abetting, liability under the Texas Theft Liability Act, and under the doctrine of Trespass ab Initio.@  We
conclude appellees= summary judgment motion, addressed as it was to the causes of action alleged in
O=Kane=s first amended petition, was sufficiently broad to encompass the additional allegations with the
exception of the Theft Liability Act claim.

To summarize, we conclude appellees= summary judgment motion was sufficiently broad to encompass
O=Kane=s claims or theories of concert of action, aiding and abetting, and trespass ab initio.  We therefore
overrule his first issue relative to those claims or theories.  But, we conclude appellees= summary judgment
motion was not sufficiently broad to encompass O=Kane=s claim under the Texas Theft Liability Act.  We
therefore sustain his first issue solely as it relates to that claim.


Having concluded that appellees= summary judgment motion was not sufficiently broad to cover O=Kane=s
Texas Theft Liability Act claim, we reverse the trial court=s summary judgment in favor of appellees on that
claim, sever that portion of the court=s judgment, and remand the case to the trial court for further
proceedings as to the Texas Theft Liability Act claim. We affirm the remainder of the judgment.