Chapin & Chapin, Inc. v. Texas Sand & Gravel Co. ( 1991 )

ON MOTION FOR REHEARING

In his motion for rehearing, counsel for Chapin contends we ignored the Supreme Court’s holding in Greenhalgh v. Service Lloyds Insurance Co., 787 S.W.2d 938 (Tex.1990). We will overrule the motion for rehearing, but write to further illuminate our prior ruling and to correct any misapprehension about our consideration of the Greenhalgh case.

In pertinent part, Greenhalgh held:

Under Rules 63 and 66 a trial court has no discretion to refuse an amendment unless: 1) the opposing party 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.

787 S.W.2d at 939 (emphasis added, citations omitted).

As discussed in the prior opinion, granting Chapin leave to amend would have shifted the burden of going forward with evidence. Under the peculiar and unique practice surrounding suits on sworn accounts, the amendment would have radically altered the posture of the case on the eve of trial, and was tantamount to asserting a new defense. The amended answer was therefore prejudicial on its face and we cannot find the trial court abused its discretion by refusing the amendment.

The motion for rehearing is overruled, as is appellants’ motion to publish.¹

1 . Published by order of the Supreme Court.