NO. 10-90-041-CV

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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          CATHY ANN CHARLESWORTH,

                                                                                            Appellant

          v.

          RICHARD IRVIN DIAL AND SANDRA GAIL DIAL,

                                                                                            Appellee

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From 249th Judicial District Court

Johnson County, Texas

Trial Court # 249-46-87

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O P I N I O N

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          Richard and Sandra Dial, appellees, sued Cathy Charlesworth, appellant, for injuries they sustained when Charlesworth's car struck their motorcycle. The jury awarded them $70,429.55 in damages, including $40,000 for future pain and suffering. Charlesworth complains about the court's allowing the Dials to amend their petition, after the verdict and before judgment, to increase the amount of damages for future pain and suffering to the amount awarded by the jury. The judgment will be affirmed.

          The Dials proceeded to trial on a petition seeking a total of $95,181.96 in damages, which included $5000 for Richard's future pain and suffering and $3000 for Sandra's. They obtained a verdict for $70,429.55, including $25,000 for Richard's future physical pain and $15,000 for Sandra's. Before the judgment was entered, the court allowed the Dials to amend their pleading to increase the amounts sought for future pain and suffering to the amounts found by the jury. Charlesworth complains that the court erred when it did so.

          Rule 63 of the Rules of Civil Procedure provides that parties may amend their pleadings:

as they may desire by filing such pleas with the clerk at such time as not to operate as a surprise to the opposite party; provided, that any amendment offered for filing within seven days of the date of trial or thereafter . . . 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 amendment will operate as a surprise [to] the opposite party.

Tex. R. Civ. P. 63. Furthermore, a court must allow trial amendments "freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him." Id. at 66. Thus, a court cannot refuse a trial amendment unless: (1) the opposing party presents evidence of surprise or prejudice; or (2) the opposing party objects to the amendment which asserts a new cause of action or defense, which is prejudicial on its face. Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex. 1990).

          Pleadings may be amended after the jury reaches its verdict and before judgment is entered. Id. at 940. A party's right to amend at this stage is subject only to the opposing party's right to show surprise. Id. An amended pleading which increases the amount of damages sought does not automatically constitute a surprise to the opposing party; instead, the opposing party must show that the increase resulted in surprise. Id.

          Charlesworth's counsel contested the trial amendment by written motions and by an affidavit. He alleged in the affidavit that Charlesworth would be irreparably harmed by the amendment because: (1) it increased her liability for future pain and suffering from $8,000 to $40,000; (2) it deprived her of the right to cross-examine the Dials about the increase in the damages sought; (3) it deprived her of the right to call and consult with medical witnesses to refute their claim of future pain and suffering; (4) it prevented her from seeking medical examinations of the Dials to refute their claim for future pain and suffering; (5) it deprived her of considering the increased damages in settlement negotiations; (6) it deprived her of the right to call fact witnesses concerning the Dials' claim for future pain and suffering; (7) it deprived her of the right to seek a continuance; and (8) it deprived her of the right to direct her trial strategy.

          The jury's award, $70,429.55, was almost $25,000 less than the total damages sought by the Dials in their trial pleading. Charlesworth must have considered their claim for future pain and suffering in determining trial strategy, settlement negotiations, calling and questioning of expert and fact witnesses, cross-examining witnesses, and preparing for trial because the Dials were seeking these damages before the amendment. She does not indicate how her strategy would have substantially changed had the greater amount of future pain and suffering been originally pleaded.

          Damages for future pain and suffering are incapable of exact calculation or proof. See Moore v. Lillebo, 722 S.W.2d 683, 686 (Tex. 1986). Consequently, placing a value on this type of damage is peculiarly within the jury's province. Id. Charlesworth has not explained how she could have cross-examined the Dials or their witnesses or presented expert or lay witnesses to prove that they had only sustained $8,000 rather than $40,000 in damages for future pain and suffering. The evidence was factually sufficient to support such an award, and Charlesworth does not contend otherwise.

          The trial amendment did not assert a new cause of action, but merely increased the amount of damages to conform to the jury's award. As Charlesworth failed to prove that she was surprised or prejudiced by the amendment, the court acted properly in allowing it. See Greenhalgh, 787 S.W.2d at 941. Accordingly, points one and two are overruled and the judgment is affirmed. 

                                                                                 BOB L. THOMAS

                                                                                 Chief Justice

Before Chief Justice Thomas,

          Chief Justice McDonald (Retired)

          and Justice James (Retired)

Affirmed

Opinion delivered and filed February 7, 1991

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(Tex. Crim. App. 1980). We overrule point three.

      Finally, Lambert asserts that the instruction is an impermissible comment on the weight of the evidence because the court "emphasiz[ed] through its instruction how the jury could find intent on the part of the defendant, [and] made its feelings known to the jury as to the issue of intent." Lambert relies solely upon Browning v. State, 720 S.W.2d 504, 507 (Tex. Crim. App. 1986), and argues that, "when the trial court, the only source of the law the jury has, picks out only one such inference and instructs the jury that that one, though rebuttable, is a presumption provided by law, the court gives the force of law to that one possible inference." In Browning, the court instructed the jury that "[o]ur law provides that the act of breaking and entering at nighttime raises a presumption that the act was done with the intent to commit theft." Id. at 505. The Court of Criminal Appeals held that instructing the jury on the presumption was a comment on the weight of the evidence because it instructed the jury that, if it found that he had entered the home at night, they could presume intent and disregard appellant's defensive evidence altogether. Id. at 508.

      However, the facts in Browning are distinguishable from the facts here. The court's instruction did not refer to any presumption or any specific evidence introduced by either party and did not "pick out only one inference" the jury could have made; rather, the instruction merely advised the jury of the broad categories of evidence it could review as it determined Lambert's "intent, if any." Id. The instruction did not comment on any evidence and was a proper instruction. Point four is overruled, and the judgment is affirmed.

                                                                                 BOB L. THOMAS

                                                                                 Chief Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed January 17, 1996

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