in Re Park Memorial Condominium Association, Sameer Soleja, Lynn Tibbe, Michael Kirk and Barbara Belbot ( 2011 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed September
27, 2011.
In The
Fourteenth Court of Appeals
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NO. 14-11-00818-CV
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IN RE PARK MEMORIAL CONDOMINIUM ASSOCIATION, SAMEER SOLEJA,
LYNN TIBBE, MICHAEL KIRK AND BARBARA BELBOT, Relators
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
133rd District Court
Harris County, Texas
Trial Court Cause Nos. 2008-58744 & 2008-68187
MEMORANDUM OPINION
On September 20, 2011, relators filed a petition for writ of mandamus in this court.
See Tex. Gov’t Code § 22.221; see also Tex. R. App. P. 52. Relators complain that
respondent, the Honorable Jaclanel McFarland, presiding judge of the 133rd District Court
of Harris County, Texas, abused her discretion by denying their motion to strike Plaintiff’s
First Amended Petition.
The record reflects the trial court granted relators’ special exceptions to Plaintiffs’
Original Petition on April 4, 2011, and ordered the Plaintiffs’ claims stricken from
Plaintiffs’ Original Petition. The trial court “FURTHER ORDERED that Plaintiffs may
amend the petition by April 30, 2011 to re-plead . . . Should Plaintiffs fail to re-plead their
claims . . . with the specificity required in this Order and in conformity with this Order,
then its [sic] FURTHER ORDERED that Plaintiffs’ claims’ against Defendants, . . . are
dismissed with prejudice.” April 30, 2011, fell on a Saturday. Plaintiffs’ amended
petition was therefore due by Monday, May 2, 2011. The amended petition was filed
Thursday, May 5, 2011. On May 27, 2011, relators moved to strike the amended petition.
A hearing was held and the trial court orally denied relators’ motion.
Relators contend the trial court abused its discretion by failing to enforce its own
order and dismiss plaintiffs’ claims. We review a trial court’s ruling on amended pleading
under an abuse of discretion standard. Hardin v. Hardin, 597 S.W.2d 347, 349–50
(Tex.1980). Appellate courts rarely find an abuse of discretion when a trial court refuses
to strike an amended pleading filed more than seven days before trial. Christensen v.
Chase Bank USA, N.A., 304 S.W.3d 548, 555 (Tex. App. – Dallas 2009, pet. denied).
A party may amend its pleadings up to seven days before trial, or within the time
required under a pretrial order. Tex. R. Civ. P. 63; Hakemy Bros., Ltd. v. State Bank &
Trust Co., 189 S.W.3d 920, 924 (Tex.App.-Dallas 2006, pet. denied). After the time for
filing amended pleadings has passed, the trial court abuses its discretion in denying leave to
file an amended pleading unless (1) the party opposing the amendment 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, and the opposing party objects to the amendment. First State
Bank of Mesquite v. Bellinger & Dewolf, L.L.P. 342 S.W.3d 142, (Tex. App. – El Paso 2011, no
pet.) (citing State Bar v. Kilpatrick, 874 S.W.2d 656, 658 (Tex.1994) (per curiam);
Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex.1990); and G.R.A.V.I.T.Y.
Enters., Inc. v. Reece Supply Co., 177 S.W.3d 537, 542 (Tex.App.-Dallas 2005, no pet.)).
Relators do not claim either of these exceptions apply in the instant case.
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The trial court’s denial of relators’ motion to strike was not so arbitrary or
unreasonable as to amount to an abuse of discretion. See Ford Motor Co. v. Castillo, 279
S.W.3d 656, 661 (Tex.2009) (“A trial court abuses its discretion when it reaches a decision
so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.”).
Relators have not established they are entitled to mandamus relief. Accordingly, the
petition is denied.
PER CURIAM
Panel consists of Justices Seymore, Brown, and Boyce.
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