                                        IN THE
                                TENTH COURT OF APPEALS

                                        No. 10-14-00052-CV

LEE HOMES OF LIMESTONE COUNTY, INC.,
JAMES LEE AND MARSHA LEE,
                                                                       Appellants
    v.

FIRST NATIONAL BANK, GROESBECK, TEXAS,
BILL SADLER, BILL DAVID SADLER,
                                    Appellees



                                  From the 77th District Court
                                   Limestone County, Texas
                                    Trial Court No. 30,051-A


                                 MEMORANDUM OPINION


          Lee Homes of Limestone County, Inc. and James and Marsha Lee filed suit against

First National Bank, Groesbeck, Bill Sadler, Bill David Sadler, and Bobby Reed alleging

breach of contract, fraud, and breach of the duty of good faith and fair dealing.1 First

National Bank and the Sadlers filed a traditional motion for summary judgment. After a



1   Bobby Reed was dismissed from this appeal by order of this Court on August 14, 2014.
hearing, the trial court granted the motion and entered judgment dismissing the claims

with prejudice and ordering that Lee Homes and James and Marsha Lee take nothing on

their claims against First National Bank and Bill Sadler and Bill David Sadler. We affirm.

                                        Background Facts

        On May 27, 2008, Lee Homes obtained a loan from First National Bank,

Groesbeck, in the amount of $246,934.00 to purchase Lot 13 in the Social Circle

Subdivision and build a “spec” home on that lot. Bill Sadler was the President of First

National Bank at that time, and Bill David Sadler was the Assistant Vice-President. The

loan was secured by a deed of trust and a security interest in Lot 13 and the “spec” home.

When the home was near completion, Lee Homes discovered that part of the house was

on the property of Lot 14 which was owned by someone else. On November 17, 2008,

Lee Homes borrowed $62,194.82 from First National Bank to purchase Lot 14, and the

loan was secured by a deed of trust and security interest in Lot 14.

       After obtaining the second loan, Lee Homes did not have enough funds to

complete the “spec” home. Lee Homes sought an additional loan from First National

Bank, but the bank refused to loan the company any more money. James and Marsha

Lee took out a home equity loan on their 23 acre tract for $44,000 to complete the “spec”

home. The home did not sell right away, and Lee Homes was unable to make payments

to First National Bank on the first and second loans. Lee Homes deeded the property to

the bank in lieu of foreclosure, and the bank later sold the home. James and Marsha Lee

had trouble making the payments on the home equity loan, and they sold the 23 acre tract

to pay off that loan.

Lee Homes of Limestone County, Inc. v. First National Bank, Groesbeck, Texas        Page 2
                                       Amended Pleadings

       In the first and second issues, Appellants argue that the trial court erred in

allowing Appellees to file amended pleadings. We review the trial court’s decision on

whether to allow the amendment of pleadings under an abuse-of-discretion standard.

Air Products and Chemicals, Inc. v. Odfjell Seachem A/S, 305 S.W.3d 87, 92 (Tex.App.-

Houston [1 Dist.] 2009, no pet.).

       Appellants filed suit on December 12, 2012, and Appellees filed a general denial

answer on February 1, 2013. On November 26, 2013, Appellees filed their traditional

motion for summary judgment asserting the statute of limitations and the statute of

frauds. On January 10, 2014, Appellees filed their First Amended Original Answer and

Affirmative Defenses that pleaded the defenses of statute of limitations and statute of

frauds. On January 17, 2014, the trial court held a hearing on the motion for summary

judgment.

       At the hearing, Appellants argued that the amended answer was not timely filed

pursuant to Rule 63 of the Texas Rules of Civil Procedure. A party may not file an

amended pleading within seven days of trial or thereafter without obtaining leave of

court. TEX. R. CIV. P. 63. The court shall grant leave to amend unless there is a showing

that the amendment will operate as a surprise to the opposing party. TEX. R. CIV. P. 63.

Appellees argued that the amended answer was timely filed citing Sosa v. Central Power

& Light, 909 S.W.2d 893 (Tex. 1995) as authority. However, in an abundance of caution,

Appellees presented the trial court with a proposed order granting leave to amend their

answers, and the trial court signed the order.

Lee Homes of Limestone County, Inc. v. First National Bank, Groesbeck, Texas       Page 3
       In Sosa, the plaintiffs filed a second amended original petition on November 10,

1993 and the summary judgment hearing was held on November 17, 1993. Sosa v. Central

Power & Light, 909 S.W.2d at 894. The Court considered whether Rule 4 of the Rules of

Civil Procedure governs the computation of the time period in Rule 63. Id. Rule 4

provides:

       In computing any period of time prescribed or allowed by these rules, ... the
       day of the act, event, or default after which the designated period of time
       begins to run is not to be included. The last day of the period so computed
       is to be included…

The Court stated that when Rule 4 is applied, the day on which the Sosas filed their

amendment is not counted, but the seventh day after it was filed is counted. Sosa v.

Central Power & Light, 909 S.W.2d at 895. The Court held that the last day counted from

the date of the filing may be the date of the hearing and that the Sosas timely filed their

second amended original petition. Id.

       As in Sosa, Appellees filed their amended pleading on the 10th of the month and

the summary judgment hearing was on the 17th of the month. Therefore, the Appellees

amended answer was timely, and the trial court did not abuse its discretion in allowing

Appellees to file the amended answer. We overrule the first issue. Because of our

disposition of the first issue, we need not address the second issue. TEX.R.APP.P. 47.1.

                                    Motion for Continuance

       In the third issue, Appellants argue that the trial court erred in denying their

request for a continuance of the January 17, 2014, hearing on the motion for summary

judgment. The decision to grant or deny a motion for continuance is within the trial


Lee Homes of Limestone County, Inc. v. First National Bank, Groesbeck, Texas           Page 4
court's sound discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.1986); In re Z.J.C. and

T.J.M.C., 440 S.W.3d 42, 47 (Tex.App.-Waco 2009, no pet.). Unless the record discloses a

clear abuse of that discretion, the trial court's action in granting or refusing a motion for

continuance will not be disturbed. Villegas, 711 S.W.2d at 626; Schneider Nat'l Carriers, Inc.

v. Bates, 147 S.W.3d 264, 292 n. 142 (Tex.2004); In re Z.J.C. and T.J.M.C. 440 S.W.3d at 47.

       At the summary judgment hearing, Appellants’ counsel stated that Appellants

were not obligated to respond to Appellees’ motion for summary judgment on the merits.

Trial counsel stated:

       So, what I'm addressing the Court on is, if the Court's going to permit them to
       file late and get their voluminous statute of limitations to grant this summary
       judgment, I want to have the Court honor my motion for continuance to give
       us an opportunity to respond to those things.
       …
       That’s why I’d like to ask the Court if we could get a ruling on our objections
       to the motion for summary judgment on the basis of no pleadings to
       support it. … If it’s going to be granted, I want the permission to file a
       motion for continuance.

The trial court questioned Appellants’ attorney as follows:
       Well, let me ask you a couple of questions, [trial counsel]. You have told
       me you want a continuance. You’ve recited to me that there’s been
       extensive discovery in this case. Do you have any basis you can … point
       me to? I have, from the defendants, a rather thick summary of deposition
       testimony and things like that. Can you point me to anything in the
       depositions that indicates any of these representations, fraud claims, the
       breach of contract took place after November the 12th of 2008?

       …
       I’d like you to tell me. You said there’s been extensive discovery in the case.
       In other words, you’re telling me that you want a continuance to do these
       things when the motion was filed November 26th. You had a lengthy period
       of time.
       …



Lee Homes of Limestone County, Inc. v. First National Bank, Groesbeck, Texas             Page 5
       So what I’m asking you is, they’ve laid out a rather lengthy argument as to
       pointing out that there is no breach of contract, misrepresentation or fraud
       that took place after December 12, 2008. I’m simply asking you, as an
       attorney here today, can you point me to anything?

Appellant’s attorney responded:
      We have not responded to that nor do we feel we were obligated to respond
      to that when the pleadings of affirmative defenses were not before the
      Court.

The trial court found:

       Based on everything I have at this point in time, I find that there’s absolutely
       no surprise. You were aware that the statute of limitations was raised. And
       based on this case I have, it appears that it was timely filed.
       However, in an abundance of caution, because I don’t think there was any
       surprise, certainly nothing said to me today assumes that. I am going to
       grant them leave to amend, if that’s necessary, which I don’t think it is. And
       if you have nothing you can point me to, I’m not going to continue this case,
       but I intend to grant the summary judgment. I’ll give you one last chance.
       If you can point me to a date in the deposition, any testimony at all, any
       evidence at all before me that would make me think that something took
       place after December 12, 2008 … then I will certainly consider looking at it.

Trial counsel responded:

       Your honor, perhaps you misunderstood what I was talking about about a
       continuance. I’m not talking about further discovery, further anything
       other than to give us a chance, as the defendants had, to respond to their
       motion for summary judgment. We haven’t because we didn’t have to
       because of the Texas Rules of Civil Procedure.

The trial court denied the motion for continuance and granted Appellees’ motion for

summary judgment.

       The record shows that the trial court considered Appellants’ motion for

continuance and determined that Appellants had conducted extensive discovery and had

adequate time to respond to the motion for summary judgment. Appellants have not



Lee Homes of Limestone County, Inc. v. First National Bank, Groesbeck, Texas              Page 6
shown that the trial court abused its discretion in denying the motion for continuance.

We overrule the third issue.

                                            Conclusion

       We affirm the trial court’s judgment.




                                                       AL SCOGGINS
                                                       Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed September 3, 2015
[CV06]




Lee Homes of Limestone County, Inc. v. First National Bank, Groesbeck, Texas     Page 7
