Special contributing author Laura Mueller, City Attorney for Dripping Springs
Raul Gonzales v. City of Farmers Branch, No. 06-20-00054-CV (Tex.App.—Texarkana November 5, 2020) (mem. op.).
This is a Texas Tort Claims Act (“TTCA”)/vehicle accident case where the Texarkana Court of Appeals affirmed the trial court’s summary judgment in favor of the City.
The plaintiff was a passenger in a vehicle where a police officer shot and killed the driver of the vehicle. The plaintiff alleged that the city negligently trained and supervised its officers and for reckless use of the firearm. The city filed a plea to the jurisdiction and a motion for summary judgment arguing that the plaintiff’s claims were for intentional torts for which the city retains immunity. The trial court granted the city’s plea to the jurisdiction and summary judgment, dismissing the plaintiff’s claims. On the same day, the plaintiff filed an amended petition. The plaintiff appealed the trial court’s judgment arguing that: (1) he should have been allowed to speak at the non-jury trial; and (2) that the trial court should have taken into consideration his late amended petition before issuing its judgment.
The court held that amended petitions must be filed within seven days of the date of a summary judgment proceedings or have leave of the court before being filed. Tex. R. Civ. P. 63; Horie v. Law Offices of Art Dula, 560 S.W.3d 425, 431 (Tex. App.—Houston [14th Dist.] 2018, no pet.). The court of appeals noted that no trial was held in this case, it was decided by summary judgment, and thus there was no trial for the plaintiff to be excluded from. Further, the court held Gonzales did not appeal the dismissal on substantive grounds and only argued the amended petition should have been considered. The court of appeals affirmed the trial court’s judgment dismissing the plaintiff’s claims because the plaintiff did not request leave to file the amended petition as required by the Rules of Civil Procedure.
If you would like to read this opinion click here. Panel consists of Chief Justice Morriss and Justices Burgess and Stevens. Opinion by Chief Justice Josh R. Morriss, III.