Agnes Abram Williams v. Nazrie Walker and George Abram ( 2004 )

Agnes Williams et al. v. Nazrie Walker et al.

  IN THE

TENTH COURT OF APPEALS

No. 10-00-00303-CV

     AGNES ABRAM WILLIAMS, ET AL.,

                                                                              Appellants

     v.

     NAZRIE WALKER

     AND GEORGE ABRAM, ET AL.,

                                                                              Appellees

From the 87th District Court

Freestone County, Texas

Trial Court # 95-320B

DISSENTING OPINION

      Because I find the trial court did not abuse its discretion when it refused to grant a trial amendment, I would affirm the judgment.

      The majority indicates that the appellees should have anticipated that the appellant would raise two affirmative defenses, statute of frauds and forgery, to the partition agreements and will. The appellants learned of the partition agreement sufficiently in advance of trial, 50 days according to the majority opinion, to have considered and pled these defenses as a matter of right if they so chose. They did not.

      Appellants had ample time prior to trial to raise the defenses. It would seem obvious that even if the Appellee should have anticipated the defenses because the issue was raised 50 days before trial, based upon the requirement that affirmative defenses must be pled and these were not, the appellees would justifiably be surprised if then called upon to counter these defenses when no attempt was made to amend the pleadings until well after trial had commenced. It seems we are holding that if the opposing party could have anticipated the defense, there is no need to plead it. This seems backwards to me.

      The appellants had the time to plead these defenses before trial. They did not. They proceeded to trial, apparently prepared to present evidence in support of these defenses, rather than ask for a continuance to allow for additional discovery or for time to amend their pleadings.

      Under these circumstances, the trial court did not abuse its discretion by refusing the trial amendments to add these defenses. I would affirm the judgment. Because the majority does not, I respectfully dissent.

                                                                   TOM GRAY

                                                                   Chief Justice

Dissenting opinion delivered and filed March 31, 2004